Citation: 15 BLC 633, 13 BLC (AD) 114, 17 BLC 674, 11 BLC 98, 11 BLC 438, 11 BLC (AD) 10, 12 BLC (AD) 92, 33 BLC 208, 12 BLC 705, 17 BLC 715, 11 BLC (AD) 59, 16 BLC 172, 12 BLC (AD) 138, 16 BLC 263, 12 BLC 299, 15 BLC 754, 16 BLC (AD) 96, 16 BLC 239, 15 BLC 702
Case Year: 1908
Subject: Code of Civil Procedure
Delivery Date: 2018-06-11
Code of Civil Procedure, 1908
[V of 1908]
Sections 2(4), 15, 24, 32, 38, 39 & 44A(1)—
In view of the provisions laid down in sections 2(4), 15, 24, 32, 38 and 39 of the Code, sections 3, 10, 18, 20 and 21 of the Act and section 3(15) of the General Clauses Act, 1897 the District Court mentioned in section 44A(1) of the Code means only the Court of the District Judge. In other words certified copy of the decree under section 44A(1) of the Code must be filed in the Court of District Judge. It is pertinent to point out that admittedly the decree-holder under section 44A(1) of the Code filed the certified copy in the Court of District Judge and ultimately it was transferred to Court of Joint District Judge for execution. After combined reading of the aforesaid provisions particularly sections 44A(1) and 39(2) of the Code, we are of the view that the joint District Judge has the jurisdiction to execute the foreign decree whose certified copy was filed in the Court of District Judge and subsequently transferred to him. Therefore, the Courts below after appreciating materials on record by rejecting the applications committed no error of law.
AI-Arafah Islami Bank Ltd vs Nobel Enterprise 15 BLC 633.
Sections 6,15, 22/ 24 and 115(1)(2)—
The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provisions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure.
Bangladesh vs AHM Khurshed Ali 13 BLC (AD) 114.
Section 9—
Once mortgaged, it shall always be deemed to be a mortgage. So, the doctrine of past and closed transactions are not applicable after insertion of the definition of "complete usufructuary mortgage" in the State Acquisition and Tenancy Act. Legality and propriety of any order passed by Sub Division Officer is not amenable under section 9 of the Code of Civil Procedure, as after the expiry of 7(seven) years the property mortgaged in question deemed to be realized automatically, and, as such, the proceeding started by the Sub-Divisional officer not to determine the validity of law or mortgage but it was, in fact for only to pass necessary order. If the mortgagee failed or refused to hand over the possession of the property, if not, handed over in the meantime, and in that case, the Sub-Divisional Officer is authorized to pass order for redemption and also to hand over the possession of the property to the mortgagor.
Budhimante Base vs Ajnacharan Biswas 17 BLC 674.
Section 9—
Jurisdiction in law means the power and authority of a Court to hear and determine a cause to adjudicate and exercise judicial power in relation to it. It other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. Therefore, the jurisdiction of a Court means the extent of authority of a Court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits.
Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.
Section 11—
In an appeal the appellant is allowed to re-agitate the grounds taken by him before the Registrar and in an appropriate case can also urge additional grounds before the High Court Division, If that be so why an "aggrieved person" will not be able to file a rectification case under section 46 of the Act against the decision of the Registrar before the High Court Division without preferring an appeal to the High Court Division. It seems there is no legal bar in doing so. In other words, section 76 does not control section 46 or vice versa. They are independent of each other. It is the choice of the aggrieved party which of the two remedies he will avail. On this score also the principle of res judicata is not attracted in the instant case. To an aggrieved party two alternate remedies are available against the decision of the Registrar. In the event of rejection of an opposition he can file an appeal under section 76 of the Act to the High Court Division or in the alternative can file a rectification case under section 46 of the Act. The remedies are parallel to each other.
Rahimuddin Mia (Bharasa) (Md) vs Registrar of Trade Marks 11 BLC 438.
Section 11—
The High Court Division was in error in holding that the Title Suit No. 22 of 1987 was barred on the ground of principle of res judicata in view of the ex parts decree in the Title Suit No. 860 of 1981 appears to be not well conceived in that so long the ex parte decree is not set-aside the same being remaining the legal one the subsequent suit between the same parties, in respect of the matter which was the subject matter of the previous suit may not be the position of the parries in the later suit, similar to the earlier suit relating to the subject matter of the previous suit and as to which a competent court has passed the decree, the later suit is certainly barred by the principle of res judicata.
Government of Bangladesh, represented by the Secretary, Ministry of Forest vs Md Osimuddin 11 BLC (AD) 10.
Section 11—
Regarding the contention that the parties as well as the subject matter of the present suit and that of the previous suits i.e. Title Suit No. 48 of 1965, 18 of 1974 and 567 of 1980 being same, the present suil for declaration of title is barred by res judicata under section 11 of the Code of Civil Procedure, the High Court Division relying on the case of Kala Meah vs Faiz Ahmed reported in 2 MLR (AD) 218 rightly held that the present suit is hit by the principle of res judicata.
Kulsum Bibi vs Deputy Commissioner, Magura 12 BLC (AD) 92.
Section 11—
In the instant case, since the plaintiffs were not parties in proceedings of their predecessors, so they have no locus standi to bring the suit for declaring the order of the proceedings illegal in which they were not parties. They were bound by the j decisions taken by the Revenue Courts against their predecessors. So, the suit of the plaintiffs are barred by the principle of res judicata. Moreso, the plaintiffs have also failed to prove title and possession in the suit land.
Abdul Aziz vs Kabir Ahmed Patwaiy 33 BLC 208.
Section 11 —
Since the subject-matter of the Rule had already been challenged before a civil Court by one of the members of the chamber and that matter was ended with the dismissal of the suit, the said judgment and order of dismissal will operate as res judicata against the Rule. It further appears that a schedule of election was published (Anne-xure-C to the Writ Petition). Whether the notice was served upon the members under Rule 15(2) of the Trade Organisation Rule, 1994 is a question of fact and that cannot be decided by this Court in writ jurisdiction. It is too late to raise the question before this Court.
Anwar Sadat Sarker vs Ministry of Commerce 15 BLC 232.
Section 11—
The condition of res-judicata is that former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. This condition recognises the general principle of law that the judgment and decrees bind the parties and privies. Therefore, when it is admitted that the predecessors of the plaintiffs-respondents were the parties in suit No. 29 of 1959 (previous No; 17, of 1961 and 12 of 1962), the judgment and decree of that suit bind the plaintiff-respondent and the present suit is barred by res-judicata.
Rezaul Karim vs Moulana Md Harttn-ur-Rashid 12 BLC 705.
Section 15—
Section 8 of the Act imposes prohibition of registration of certain mattes and provides that no "Trade Mark " nor part of a trade mark shall be registered which consists of or contains, any scandalous as designed, or any matter the use of which would by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice.
Wellcome Ltd vs Incepta Pharma Ltd 17 BLC 715.
Section 20—
The appellant, taking recourse to the provision of section 20(a), CPC read with Explanation II to said section, is not competent to file the suit in Dhaka, which is, in fact, the offshoot of the suit which was decreed at Rangpur, since for the purpose of establishing that the decree in Artha Rin Adalat Case No. 55 of 1990 was legally passed and that execution case taken out on the basis of the decree obtained in the Artha Rin Adalat Case and that property of the appellant sold in the execution case were legally done are to be established by the respondent No. 2 through the evidence, both oral and documentary, from Rangpur. So, considering the convenience of the respondent No. 2 in a situation like the instant one, the appellant is not competent to file the suit as filed in the Court of Sub-ordinate Judge, Dhaka impleading the respondent No. 1 whose Head Office is at Dhaka and carries on business through its branches in Rangpur and other places. The High Court Division has quite correctly passed the order for return of the plaint to the learned Advocate of the appellant for filing the same in the appropriate Court.
Habibur Rahman (Md) vs UttamBank Ltd 11 BLC (AD) 59.
Section 20 & 115(4)—
It is pertinent to point out that plaintiff instituted the suit showing his permanent address in Rajshahi and defendant business concern is also extended to Rajshahi which is within the local limits of District Judgeship of Rajshahi. So, institution of suit in the Sadar Court of Assistant Judge, Rajshahi, is competent.
Jesmin Ara vs Abdul Karim 16 BLC 172.
Sections 21 and 99—
The view taken by the learned Single Judge cannot be accepted that the present suit suffers from defect of party for failing to implead the Government as plaintiff instead of the Divisional Forest Officer, Dhaka Division, rendering the suit liable to be dismissed on that account in view of section 99 of the Code of Civil Procedure. This has been a case of mere mis-description of the plaintiff. Such mis-description of the plaintiff can at best be taken to be a technical defect and it should not be allowed to defeat the ends of justice. The policy underlying sections 21 and 99 of the Code of Civil Procedure is that when a case has been decided on merit, it should not be reversed unless it has resulted in failure of justice. Since the present case has been decided on merit, the mere mis-description of the plaintiff shall not be allowed to affect the suit, particularly when the mis-description of the plaintiff in the present suit has not affected the merit of the controversy or the jurisdiction of the court. The present suit, as framed, is found to be maintainable and the judgment and decree dated 29-9-1992 passed by the trial Court is restored.
Divisional Forest Officer vs Md Shahabuddin 12 BLC (AD) 138.
Section 24—
The Presiding Judge should always be impertial and he must not add futher line after passing the order, Accordingly, suits were withdrawn from the Court of Joint Distric Judge.
Enamul Haque vs Md Ekramul Haque 16 BLC 263.
Section 24—
It is now well settled that in an application for transfer heavy onus lies on the petitioner to show that there is bias in the presiding judge. All the allegations including ; the omission to record the evidence are absolutely vague and indefinite and no material whatsoever was either placed before the I learned District Judge along with the appli- f cation filed before him to substantiate the alle gations. It appears that the learned District Judge rightly observed that there is no basis in the allegation of bias and it is the product of mere surmises and conjecture without any material basis.
Sirajul Islam Shikder (Md) vs Suruj Miah 12 BLC 299.
Section 24—
Section 24 of the Code of Civil Procedure does not enjoin any condition for transfer. But such transfer can only be made upon some established principles and by exercise of proper judicial discretion. Here, in this case, there is no cogent ground to justify such transfer. Rather such transfer of the case will create immense trouble to both parties and also will incur huge cost of both parties.
Jamal Hossain (Md) vs Md Mazid 12 BLC 452.
Section 24—
In this case, the petitioner has filed the application for transfer of the appeal, the respondent has not opposed it by filing any counter-affidavit, and there is no objection at all which presumes that there is no chance of being prejudiced by the other side.
Sawj Kumar Barker vs Monoj Kumar Barker 14 BLC 40,
Section 24—
The nature of all three suits are different. Thus from the facts and circumstances of the case, it appears that the learned District Judge committed wrong in directing to try these three suits simultaneously without taking into consideration that Title Suit No.240 of 1997 and SCC Suit No.20 of 1998 at preliminary stage and it will take long time to reach at the hearing stage for disposal along with Title Suit No.145 of 1997 and, as such, the order No. 10 dated 27-9-2000 passed by the learned District Judge is not legal and thus he has committed an error of law in passing the impugned order.
Ashrafunnessa vs Bimsankar, Shiba Bigraha 15 BLC 754.
Section 24—
The High Court Division has rightly found that the Money Suit No. 2 of 2005 filed by the petitioner be transferred to the Court of Joint District Judge, Dhaka to be tried analogously with another Money Suit for the convenience of both the contending parties.
Shah Sekandar Molla vs New Sagurnal Tea Co. 16 BLC (AD) 96.
Sections 24 and 151—
The learned District Judge surprisingly transferred the case to the Court of the Special District Judge for which the petitioner moved an application under section 24 read with section 151 of the Code before the District Judge, for withdrawing the case to his own Court from the Court of the Special District Judge which was rejected by the impugned order. Assuming that the Special District Judge is the District Judge even in that case the Miscellaneous case is to be heard by him in the capacity of the District Judge in accordance with the Article 27 of PO No VII of 1973. Accordingly, the Miscellaneous case was transferred to the Court of District Judge from the Court of Special District Judge.
Moniruzzaman vs Bangladesh House Building Finance Corporation 16 BLC 239.
Section 34—
We do not find any scope to reduce the due amount claimed by the plaintiff-bank. Consequently the findings and decision of the learned Judge of the trial Court having no basis in evidence, suffer from gross illegality and, as such, the same are not legally sustainable. The learned Judge of the trial Court ought to have decreed the suit in full. So far the interest pendente lite for the period of filing the suit till realization concerned, we are inclined to exercise discretion of the Court under section 34 of the Code of Civil Procedure and award simple interest at the rate of 5% per annum.
Pubali Bank Ltd vs AKM Shamfuddin 15 BLC 702.
Section 44A—
The Courts below totally misread the provisions of section 44A of the Code of Civil Procedure and thereby arrived at a totally illegal findings in holding that the execution case was filed legally before the Joint District Judge and rejected the application filed under Order VII Rule 11 of the Code.
Nirman International Ltd vs Janata Bank 16 BLC 57.
Section 48—
The Bank did not claim that the judgment-debtor by fraud or force prevented execution of the decree within 12 years. Therefore, it is evident that the execution case not having been filed within 12 years is barred by limitation.
Iftekhar Uddin Ahmed vs Artha Rin Adalat 17 BLC 220.
Section 48(2)—
Sub-section (2) of section 48 of the CPC is an overriding clause that -empowers executing Court to order execution even beyond 12 years' time if it is found that the judgment-debtor, by fraud or force, has prevented the decree-holder from executing the decree.
Selim Mohammed & Saliullah vs Sonali Bank 16 BLC 498
Section 51—Order XXI, rule 37—
These provisions of section 51 and Order XXI, rule 37 of the Code are incorporated as a measure of punishment under certain circumstances. On the other hand, section 34 of the Ain empowers the Adalat to detain the judgment-debtor in civil prison (civil custody) as a measure to compel him to pay the decretal money and not as measure of punishment.
Manik K Bhattacherjee vs Artha Rin Adalat 16 BLC 195.
Sections 55 and 56—
Collective reading of the sections 5(4), 5(5) and 6(ka) of the Ain of 1990 shows that Artha Rin Adalat shall follow and apply the Code of Civil Procedure as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Artha Rin Adalat Ain, 1990. Section 6(Ka) has excluded the operation of Rules 3, 5, 6, 7, 8 and 9 in matters of execution of any decree. In other words, Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the Code of Civil Procedure read with Order XXI and the rules made thereunder except the rules 3, 5, 6, 7,8 and 9. Application of section 56 of the Code has not been excluded by section 6(Ka).
Hazera Begum vs Artha Rin Adalat 12 BLC (AD) 153.
Sections 60(1)(K)—
The petitioner is an employee of Rupali Bank Ltd. and neither it was in the schedule of the Provident Fund Act, 1925 nor was it subsequently included by notification and hence the provisions of sections 3 and 8 of the Provident Fund Act are not applicable in case of petitioner. Section 60(1)(K) of the Code of Civil Procedure is also applicable to compulsory deposits to which Provident Fund Act is applicable and in such legal positions the Artha Rin Adalat has legally attached the provident fund and gratuity of the petitioner.
AA Manzurul Hoque vs BSIC Bangladesh Ltd 16 BLC 752
Section 75—
As there is no mention of plot and khatian in the sale deeds which as were executed and registered long before the SA operation came into being, the matter canot be resolved through oral evidence but it can only be ascertained through relayment of the land of the sale deeds stated in the plaint by local investigation.
Gopesh Chandra Ghosh vs Radha Krishna Jews 11 BLC 47.
Section 76—
In a proceeding where Government is sued or Government sues the authority to be named as plaintiff or defendant or petitioner or appellant or respondent is "Bangladesh" as per provision of Article 146 of the Constitution read with section 79 of the Code of Civil Procedure, in absence of any writ rules on the subject and the Law Officers including the Attorney-General represent the State and not the Government and therefore, even with the change of the Government the stand once taken should be followed consistently to avoid chaos and uncertainty.
Bangladesh vs Md Aftabuddin (Retd. District & Sessions Judge) 15 BLC (AD) 25.
Sections 96 and 115—
The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the Courts below or to set-aside the judgment of the Courts below. The learned Judge in disposing of the instant case has riot given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set-aside the judgment of the Courts below. The Appellate Division expects that in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record, and thereupon assigning reason in support of his judgment. It may be mentioned in the instant case in spite of the quality of the judgment the Appellate Division did not feel to interfere with the same since on perusal of the materials on record the Appellate Division was convinced that although the judgment did not conform to the accepted form or kind, the judgment ought to have but the result arrived at calls for no interference.
Ashrafee Begum vs Md Siddiqur Rahman Patwari 13 BLC (AD) 111.
Section 100—Second Appeal—
Since it has been found plaintiff has been able to prove his title through Exhibit l(d) together with possession, the judgment and decree passed by the Court of appeal below on the facts of the given case is not sustainable in law. Although the judgment of the trial Court is a rubbish one but I confirm the ultimate decision of the learned Munsif and decreed the suit.
Sekandar Mallik vs Nannu Khan 17 BLC 286.
Section 107 Order XLI, rule 27r—
When no fact of delivery of possession of the suit property or the actual position of the possession thereof was stated in the plaint then how such fact can be noticed or taken into consideration in deciding the merit of the appeal and the documents to that effect can be permitted to be adduced as additional evidence. Considering the above factual and legal aspects of the case it appears that there is no other alternative but to send the suit back on remand to the Court below giving chance to the plaintiffs to amend the plaint and to adduce evidence afresh to prove their case. The suit is send back on remand to the trial Court for hearing afresh giving the plaintiffs chance to amend the plaint in the light of the discussions made hereinbefore and adduce evidence afresh. If the plaintiffs are in possession of the suit property as claimed in the application filed under Order LXI, rule 27 of the Code their possession therein shall in no way be disturbed by RAJUK till disposal of the suit.
Shamsuzzoha vs Khandaker Saidur Rahman 15 BLC 165.
Section 107—
The law is now settled that order of remand cannot be passed by a Court as a matter of course [41 DLR (AD) 124] and in a case where the party/parties is/are negligent in producing evidence or to fill up the lacuna 7 BIT (AD) 7] ref.
Aslam Khan (Md) vs Abdur Rahim 12 BLC (AD) 99.
Section 107—
It is settled principle of law that unnecessary order of remand entails hardship, agony of fresh hearing and additional expenditure and the same is to be deprecated and discouraged as it tends to delay the administration of justice far from advancing its course.
Abdul Quiyum Jalali Ponkhi vs Md Lukman 12 BLC 573.
Section 107—
It is not possible to pass any effective judgment unless the fact is ascertained by an Advocate Commissioner as to whether the road has been constructed upon the land of plot No. 3003 or 3004. There is no laches on the part of the plaintiff to take necessary steps. To meet the ends of justice, a fresh local investigation is necessary. The learned Sub-ordinate Judge, 2nd Court, Feni has not committed an error of law resulting in an error in the decision occasioning failure of justice in allowing the appeal and sending the suit back on remand.
Sadeque vs Abdul Khaleque 12 BLC 249.
Section 107—
The lower appellate Court was fully competent to decide the case by itself as the evidence and other materials on record were sufficient to enable it to come to a final decision without entailing the parties with unnecessary trouble and expenses and the appellate Court shirked its responsibility and thus committed an error of law resulting in an error in remanding the suit to the trial Court for fresh trial and delivery of fresh judgment.
Lutfunnessa @ Lutfa Begum vs Abdul Halim Khan 12 BLC 767.
Section 107—
The present case is considered a fit case for remand to the appellate Court below for consideration of the application for amendment to the plaint as well as for admission of the basic documents of title filed in that Court by the plaintiff-petitioner by a firishti during the pendency of the appeal as additional evidence by giving opportunity to the defendant-opposite-party No.l to adduce fresh evidence, if any, and then dispose of the appeal afresh.
Kaniz Fatema alias Beauty vs Sijed Ruhul Amin 11 BLC 123.
Section 107—
The appellate Court below being the final Court of fact had the entire evidence, both oral and documentary, before it and there is no necessity for sending the case for fresh trial to be tried along with Suit No. 44 of 1994, which is not pending for hearing. Accordingly, the Court of appeal is directed to dispose of the appeal on consideration of the materials on record and hearing the parties.
Afsar AH Molla vs Saheda Bav 14 BLC 199.
Section 107—
Since the plaintiff submitted an amalnama and 14 rent receipts, he should be given an opportunity to prove those documents. It is the settled law that the claim of title upon any case of settlement is required to be proved by adducing evidence. The suit is sent back on remand to the Court of learned Assistant Judge, Kahaloo, Bogra, for affording an opportunity to the plaintiff to produce evidence to prove his settlement and possession in the suit land as well. The Court is directed to allow the Government to submit a written statement.
Deputy Commissioner, Bogra vs Md Ishak Ali 14 BLC 270.
Section 107—
It is settled principle of law that unnecessary order of remand entails hardship, agony of fresh hearing and additional expenditure and the same is to be deprecated and discouraged as it tends to delay the administration of justice far from advancing its course.
Hazrat Ali Bhuiyan vs Md Chunnu Sikder 14 BLC 507.
Section 107, Order XXXIV, Rules 6 & 11—
It is, pointed out that in the plaint the plaintiff-bank has prayed for realisation of the money suit after sale of the mortgage property. The plaintiff-bank further has filed the suit as simple money suit having regard to the Provisions of Order XXXIV of the Code of Civil Procedure and having regard to the prayer 'D' in the plaint, the suit ought to have been filed as the mortgage suit property and obtain a preliminary decree and in that view of the matter it would be just and fair if the suit is sent back to the Court below on remand for a fresh trial giving an opportunity to the plaintiff for amending the plaint as per our observation made above and to pass a proper decree.
Rupali Bank Ltd vs Md Jiaur Rahman 14 BLC 56.
Sections 114 and 151—
In legal parlance review is a judicial re-examination of the case by the Judge, in certain circumstance. Section 114 of the Code gives us substantive right of review in certain circumstance and Order XLVII provides therefore. It should not be forgotten that a review is not an appeal in disguise whereby an erroneous decision is reheard and corrected. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsels of old and overruled arguments cannot create a good ground for review. An application for review of a judgment may be made on any of the following grounds: discovery of new and important matter or evidence or mistake or error apparent on the face of the record or any other sufficient reasons.
Abrara Begum vs Hosneara Begum 11 BLC 204.
Section 114—
There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Error apparent on the face of record is an error which can be seen by mere perusal of record without reference to any other matter and to find out such error one has not to scrutinise the evidence or record but it should be self-evident from a perusal of the record itself and can be pinpointed without elaborate examination.
Farmisi Khatun vs Md Yasin Degree College 12 BLC 762.
Section 115—
Though none appeared for the petitioner yet the High Court Division in exercise of its supervisory power under section 115(1) of the Code of Civil Procedure can dispose of the matter on consideration of the facts and circumstances of the case. Even in the absence of either of the parties the High Court Division can exercise its revisional jurisdiction suo moto.
Marjina Khatoon vs Shamsunnahar 14 BLC 289
Section 115—
The plaintiff instituted Family Suit No. 19 of 2002 in the Family Court, under the Provisions laid down in section 6 of the Family Court Ordinance, 1985. Section 10 of the Muslim Family Laws Ordinance, 1,961 provides that where no details about the mode of payment of dower are specified in nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand. So, the learned Judge of the Court of appeal below rightly decreed the suit as a whole, directing for payment of entire amount of dower.
Wahed AH vs Moslema Khatun 14 BLC 293
Section 115—
In view of the provisions laid down in section 205 of the Hindu Law where a widow or other limited heir alienates property inherited by her in contravention of the provisions of section 178, the next reversioner, though he has no interest higher than a chance of succession, may institute a suit in her lifetime for a declaration that the alienation is not binding on the reversioner, and if the facts are proved, the Court may pass a decree declaring that the alienation is not valid beyond the lifetime of the limited heir.
Ananta Kumar Biswas vs Ram Krishna alias Shaduram Brahma alias Mondal 14 BLC 300.
Section 115—
After going through the judgment of both the Courts below and on perusal of the evidence on record that there is no error of law to have been committed by the learned Appellate Judge leading to error in his decisions occasioning failure of justice. There is also no misreading or non consideration of evidence on record. Moreso, the impugned judgment being a judgment of affirmance and the learned Appellate Judge being the last court of fact after discussing the evidence on record and the judgment of the trial Court being satisfied concurred with the findings and decisions of the trial Court, which do not call for any interference invoking the revisional jurisdiction.
Abdul Gafur vs Mozaher Ali Pramanik 14 BLC 335.
Section 115—
It is well nigh to remember that High Court Division in the exercise of power under section 25 of The Small Causes Act will interfere only when a substantial injustice has been caused to a party by the order/judgment/decree under protest in Revision Petition. It is conveniently posited that power conferred upon High Court Division for interference under section 25 of The Act of 1887 is more extensive than power exercised by the High Court Division under section 115 of The Code of Civil Procedure.
Amina Begum BA B.Ed vs Md Jobayer Alam Barker 14 BLC 339.
Section 115—
Since the vested property authority did not prefer any appeal or revision against the judgment of the Trial Court, meaning that they are not aggrieved with the decision of the trial Court rather they conceded with the decision of the trial Court, the defendant No.3 claiming himself as lessee under vested property authority though he failed to prove such lease by submitting any document of granting such lease has got no locus standi to file the appeal. He is stepping in the shoes of his lessor but the lessor did not come forward to prefer any appeal or revision, meaning that the lessor conceded with the judgment of the Trial Court or with the claim of the plaintiffs.
Sampan Kumar Sarkar vs Fazaluddin 14 BLC 213.
Section 115—
On appraisal of evidence of PW1 Moijan Bibi, and it appears that there is no specific evidence that she did not put her left thumb impression in the register book and she also failed to show that her signature appears in the registered book is not her signature. Therefore, learned Judge of Court of appeal below as a final Court of facts came to a definite findings that deed of gift and Heba-bil-Ewaz were executed by plaintiffs which is correct. The trial Court without considering the materials on record, particularly transfer of Land by deed of Arponnama in favour of plaintiffs, decreed both the suits which are not correct.
Aleton Bewa vs Md Mher AH Sonar 14 BLC 553.
Section 115—
Some of the PWs including PW 1 and DWs including the Advocate Commissioner who categorically admitted/ testified about the existence of a pathway over the 2nd schedule suit land. Besides the contesting defendants contended that there was an unregistered 'Ekrarnama' relating to the disputed road, which, in fact, was not denied by the plaintiffs and the defendants proved the said 'Ekrarnama' without any objection from the plaintiffs' side. So, the findings of the lower Appellate Court on the point of pathway over the ejmali land is based on non-consideration of the evidence on record.
Abdur Roufvs Abdul Odued Jaigirdar 14 BLC 805
Section 115—
The revisional Court has ample jurisdiction to review the concurrent findings of Courts below in order to see whether those Courts have committed any error of law which resulted in any failure of justice. It is the allegation of plaintiffs-petitioners that both the trial Court and the appellate Court failed to assess both oral and documentary evidence and to misconceive the law bearing with the case, In the recitals of the deeds dated 31-3-1940 and 18-6-1941 marked Exhibits 2 and 3, there is clear assertion that the vendors of the deeds executed the same for repaying the debt and they categorically asserted that they or their successors would not claim the suit land in future. After such assertion, the claim of the defendants that the vendor did not deliver possession to the vendee does not lie. The defendants have totally failed to show any evidence that the possession of the suit land were not delivered on the basis of those deeds. There is illegality in the impugned judgment occasioning failure of justice to justify interference by this Court exercising revisional jurisdiction under section 115(1) of the Code of Civil Procedure.
Ekramullah Choudhury vs Shaficjur Rahman 12 BLC 90.
Section 115—
The judgment of lower appellate Court transpires that in arriving at its finding the said Court carefully considered the material facts and circumstances of the case and the evidence on record both oral and documentary including the registered deeds. The learned Counsel for the defendant-respondent-petitioner could not point out any error or illegality or infirmity of law in the Judgment passed by the lower appellate Court. And the case having been concluded on finding of facts, as such, no interference is called for in revision under section 115(1) of the Code of Civil Procedure.
Khoda Baksh Biswas vs Nabir-un-nessa 12 BLC 100.
Section 115—
In view of the decision given by the Appellate Division, the High Court Division can enter into the entire evidence of both the parties as admittedly, the Courts below have given their finding without considering the entire evidence of the defendant of Title Suit No. 23 of 1992 and the evidence of plaintiffs of Title Suit No. 22 of 1992.
Tara Bibi alias Tahera Begum vs Salma Rani 12 BLC 115.
Section 115—
Since the father of the defendant was not party in the original suit, so he has no locus standi to file this revision. The revisional Court acting under section 115 of the Code of Civil Procedure has ample jurisdiction to see the legality and propriety of the impugned order of the learned District Judge. The learned District Judge, Nilpha-mari, committed an error in his decision occasioning failure of justice. The judgment and order dated 6-3-2004 passed by the learned District Judge is set-aside and the judgment and order dated 17-5-2003 passed by the trial Court is affirmed.
Emdadul Haque (Md) vs Feroja Akhter 12 BLC 245.
Section 115—
In the present case, the plaintiff could not prove by adducing evidence that fraud was practiced on him when the Nikahnama was registered. It is very much clear from the materials on record and the evidence of witnesses that the plaintiff and defendant eloped from their houses and stayed in various places against which the defendant's father filed a complaint with the local police station and the plaintiff's brother was detained and subsequently, at the intervention of the local Union Parishad Chairman, the brother of the plaintiff was released and the local Chairman held arbitration to resolve the dispute. The plaintiff's witnesses also admitted about the marriage. The Courts below found that the marriage took place between the parties which was consummated as both the parties lived together for some time as husband and wife. In view of the concurrent findings of the Courts below based on materials on record and on evidence presented before the Courts, the findings of facts of the lower appellate Court cannot be disturbed in the absence of error of law or procedure affecting merit of the case,
Abul Kalam Gazi vs Nurunnahar (Shantu) 12 BLC 492.
Section 115—
Since the decisions arrived at by both Trial Judge and Appellate Judge have been vitiated by error of law, those cannot claim any immunity from being attacked in exercise of Revisional Jurisdiction envisaged under section 115 of the Code. Interference is, therefore, warranted.
Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.
Section 115—
Exploration of decisions recorded by Courts below does not at all appear that there had been misreading of evidence or those went against weight of evidence and materials on record or it has been founded on any misconception, misapplication and misapprehension of law or mis-interpretation of any material document or otherwise it is perverse being contrary to law and evidence on record and those suffer from patent wrongness, legal dodderiness and waywardness and, also, flag rant error of law. Decisions rendered, reasons counted in recording reasons and conclusion reached by Courts below appear to be well founded and firm grounded and discreet. No exception can be taken to those. No interference, therefore, is called for.
Syeda Helali Begum vs SkmtiMary Cruez 12 BLC 661.
Section 115—
Decisions of Court of Appeal being last and final court of fact are not open to interference in Revisional Jurisdiction under section 115 of the Code unless it is shown that decisions have been based upon gross misreading of evidence or those have been founded on misconception or misapplication or misapprehension of law or of any mis-interpretation of any material document or otherwise perverse being contrary to law, evidence and materials brought on record.
Syed Shamsul Alam vs Syed Hamidul Huq 12 BLC 777.
Section 115—
Petitioner has become a sufferer because of the mistake of the learned Counsel and subsequent orders of the Courts below in rejecting the plaint in place of returning the same. Accordingly, I would like to give an opportunity to the petitioner to ask for readdress of his grievance before the District Judge.
Khorshed All vsAdmistratator of Waif 17 BLC 210.
Section 115—
A stranger to a suit or a proceeding is not prohibited by the Code from filing an appeal from an order passed therein. There is no express provision permitting such party to prefer an appeal against such an Order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken a prohibited unless it is expressly provided for.
Ismail Hossain vs Shakhina 17 BLC 320.
Section 115—
In the absence of cogent reasoning or of clear findings on any issue of fact and law in the impugned judgment, this Court in revision has been hard pressed to best understand the correctness or general drift and gist of the impugned judgment. This Court fails to see why the impugned judgment or reversal is so marked by its back of elaboration to any level of satisfaction of the reasons for reversing the trial Court's judgment.
Jalal Sikder vs Shahjahan Mridha 17 BLC 431.
Section 115—
When the defendants alleged that the Dakhilas are not genuine documents, the onus shifted on the defendants to prove the plea that the Dakhilas are not genuine documents. A registered kabala is an evidence of title which will prevail over the other records of rights as such until and unless such kabala is cancelled on a specific allegation of fraud by any Civil Court in an appropriate Civil suit.
Sultan Mia vs Mokbul Hossain Mollah 17 BLC 445.
Section 115—
Before institution of suit title of plaintiffs were clouded, for which they failed to seek their redress in any manner hatsoever. Suit for permanent injunction is not maintainable.
Bangladesh vs Sirajul Islam 17 BLC 804.
Section 115—
It is contended on behalf of the petitioner that the plaintiff if at all appeared in the Viva-Voce examination. She ought to have submitted an application in the form of an appeal before the Vice-Chancellor of Dhaka University under Article 52 of the Dhaka University Ordinance, 1973 (President Order 11 of 1973). The word may used in Article 52 should mean to be treated as shall. The question of maintainability decided in a case in writ jurisdiction the principle enunciated in that decision is applicable in the instant case.
University of Dhaka vs Shikha Rani Roy 11 BLC 530.
Section 115—
As it appears the High Court Division fell in error in not considering that due to the death of Mr Jitendra Narayan Deb, Advocate (since deceased), the sole engaged lawyer of the petitioners, in the eye of law it will be demanded that the Civil Revision No. 10067 of 1991 stood "Not Ready" on 20-8-2000 and in the above circumstances notice in N-10 Form should have been issued to the petitioners. The judgment and order dated 2-11-2000 passed by the High Court Division cannot be sustained. The Rule is restored to its file and number.
Ruhitar Rahman vs Satish Chandra Roy Chy 12 BLC (AD) 171.
Section 115—
The High Court Division found that the plaintiff is a teacher of Government Primary School and was elected as the General Secretary of the Government Primary School Teachers' Association and has been functioning as such. Whereas the defendant No. 1 is not a teacher of any Government Primary School or any other Primary School and without being a teacher of any Primary School he declared himself as the President of Bangladesh Primary Teachers' Association. The High Court Division also observed that the appellate Court being a final Court of fact arrived at a decision that the defendant No. 1 failed to prove his case by producing cogent and reasonable evidence and declined to interfere with the concurrent findings of the Courts below.
Abul Kalam Azad vs Bangladesh 13 BLC (AD) 138.
Section 115—
In any view, if the objection with regard to maintainability of the suit even if not raised at any stage may be raised for the first time before the revisional Court if a decision of the said issue may be reached on admitted facts or, in the other words, the issue with regard to maintainability of a suit may be decided by the revisional Court on the basis of facts which are not disputed.
joyanta Kumar Datta vs Dilip Ranjan Datta 13 BLC 376.
Section 115—
Finding reached by Trial Judge perilously borders on perversity. Learned Trial Judge, also, failed to take into grip that in Title Suit No. 306 of 1978 fourth-twelfth defendants-opposite parties had been plaintiffs and in plaint they described Hari Rani Basak as the daughter of Kala Chand Basak. Learned Appellate Judge, also, committed the same error in finding that no documentary evidence had been produced in Court in proof that plaintiff was daughter of CS recorded tenant Kala Chand Basak. Learned Appellate Judge, also, was in patent error in holding that plaintiff could not ourt that she is the daughter of Cadastral Survey recorded tenant Kalachand Basak. Kalachand Basak was not the recorded tenant of Cadastral Survey Record of Right rather, his father Krishna Chandra Basak was Cadastral Survey recorded tenant and this is a manifestation of non-application of mind on the part of learned Appellate Judge.
Hari Rani Basak vs Bangladesh 13 BLC 1.
Section 115—
Appellate Judge as last Judge of fact was duty bound to come to a finding on discussion on materials on record, whether the predecessor grandfather Krishna Chandra Basak and father Kala Chand Basak were Enemies and whether the property could be brought under the mischief of Enemy Property laws and whether treating of property as Enemy Property suffered from illegality, but Appellate Judge did not at all touch the vital issue involved in the case and, thus, committed a grave error of law by which a failure of justice has been occasioned.
Hari Rani Basak vs Bangladesh 13 BLC 1.
Section 115—
In the case in hand no payment of compensation had been made not to speak of whether it was within one year or more than one year. In the absence of evidence on the part of defendant-petitioner and defendant-opposite-party in respect of payment of compensation money of acquired suit property the proceeding in respect of acquisition stood abated under section 12(1) of the Ordinance of 1982. The suit property was not utilised by requiring body and remained unused and suit property under the provision of section 17(2) of the Ordinance of 1982 is required to be released by defendant-petitioner Rajdhani Unnayan Kartripakha as well as defendant-opposite-party, Government of the People's Republic of Bangladesh and hand over to plaintiff-opposite-party who stepped into the shoes of owner vendor PW 2 on strength of a deed of conveyance dated 22-9-1994. Defendant-petitioner and defendant-opposite-party cannot keep suit property unused and unutilised for years and decades and cannot deny right of plaintiff-opposite-party to get suit property released. The decisions of Trial Judge and Appellate Judge are concluded by concurrent decisions of fact warranting no interference by the High Court Division in the exercise of Revisional Jurisdiction under section 115 of the Code.
Rajdhani Unnayan Kartripakha vs Abdul Zakir 13 BLC 793.
Section 115—
The High Court Division has opined that in the application for restoration, it was asserted that the tadbirker Mr Joydev Chandra Saha had been bed ridden for about six months and, as such, he could not come to Dhaka to take necessary steps after service of notice in Form N-10 upon the petitioners. But this assertion does not hold good in that the petitioners slept over the matter even after expiry of six months on the ground of alleged illness of the Tadbirkar and no step was taken by the petitioners to engage a new Advocate on their behalf till discharge of the Rule for default on 10-1-2007.
Joy Dev Saha vs Haridas Saha 14 BLC (AD) 127.
Section 115—
The High Court Division as it appears reversed the findings of the appellate Court and the trial Court as well ithout adverting to the reasoning given by the Court of Appeal which is final Court of fact. The impugned judgment is not a proper judgment of reversal. The findings of the Court of Appeal on question of fact is binding upon the High Court Division unless it can be shown that those findings are perverse. In the instant case there is no such finding by the High Court Division regarding the findings of the Court of appeal on question of fact.
Abdul Quddus Matabbar vs Yousuf All Bayati 14 BLC (AD) 132.
Section 115—
Section 17 of the Muslim Marriages and Divorces (Registration) Rules, 1975 provides that a Nikah Registrar shall not hold any salaried appointment other than an appointment in a mosque or in a non-Government school or madrasha situated within the area for which he has been licensed. It appears that plaintiff was granted licence to act as a Nikah Registrar at Ward No. 17 but he has been acting as imam in a mosque situated at Ward No. 4. So, in my view, plaintiff was not acting as a Nikah Registrar at Ward No. 17 in accordance with law till his resignation dated 11-11-2003.
Ayub Ali Khan vs Md Abdur Raqib 15 BLC 46.
Section 115—
Admittedly Taka 40,000 paid by defendant as advance is still lying with the plaintiff. Until entire amount of advance money taken by plaintiff at the time of creating subsequent tenancy, was adjusted, the defendant could not be said to have defaulted in paying rent within the meaning of aforesaid sections. As long as the plaintiff had the unadjusted amount in his hands, he could have adjusted it towards the payment of rent for the months of Sravan, 1402 BS. In view of the Provisions of section 18(5) of the Act, 1991 which do not seem to have been contravened by the defendant, no default appears to have been made by him in paying the rent for the aforesaid period.
Radha Shijam Barker vs Nani Gopal Sen 15 BLC 639.
Section 115—
Since there is no misreading of evidence so far it relates to limitation effecting the ultimate decision of the Courts below, The concurrent finding arrived at by the Courts below on question of limitation requires no interference by this Court.
Khalilur Rahman Talnkder vs Khondaker Rezaul Karim Faruk 15 BLC 739.
Section 115—
It is well settled that under Order XVIII, rule 17 CPC the Court has ample power to re-call at any stage a witness who has earlier been examined, cross-examined and discharged. This discretionary power can be exercised at the instance of a party or even suo motu. But such discretion cannot be extended beyond the law of evidence as described under section 138 of the Evidence Act to allow a party to the suit who did not cross examine a witness in time and without any excuse to avail his right to cross-examine the witnesses, the whole purpose or object for such discretion is to advance justice not to cause injustice.
Abdul Aziz Howlader vs Seratan Bibi 15 BLC 461.
Section 115—
Both the Courts below failed to consider that the divorce has already taken effect and the wife can get not only her entire dower money but also with her iddat allowance.
Nurul Islam vs Nur Ayesha Begum 16 BLC 10.
Section 115—
The point of misreading and nonreading of evidences on record being agitated by Mr Mazumder but unfortunately at the time of issuance of the rule the petitioner did not obtain the order calling for the lower Court record and since the lower Court record is not before the Court, I cannot go through the evidences on record and I have to bend upon the veracity of the judgment of both the Court below and after going through both the judgment of the Courts below, I find that both the judgment are well discussed and well founded judgment.
Fazal Hossain vs Helal Mia 16 BLC 75.
Section 115—Guardianship and Custody of Children—
Admittedly since 5-4-2009, children are in custody to the plaintiff and there is no allegation against their welfare. It is true that in Muslim Law father if alive is the natural guardian of the persons and property of his minor child. He does not require an order of the Court to support his right to act as guardian in any matter, but when the Court is satisfied that it is for welfare of children that an order should be made for their custody the Court may make an order accordingly. In such view of facts, the parties were directed to maintain status quo in respect of custody of children.
Abdul Quddus vs Syed Moinul Ahsan 16 BLC 166.
Sections 115 and 151—
The patta deed dated 9-4-1951 in favour of predecessor of defendant-petitioner by Maharaja of Tripura was accepted as valid patta deed by highest court of the land. Venture undertaken from the side of plaintiff-opposite-party i.e. Government of Bangladesh, to reopen the issue which was finally and conclusively decided by judicial verdicts of last and highest court of the country, cannot be allowed to be proceeded with and attempt by way of a presentation of a plaint is liable to be nipped in the bud at its inception so that no further time is consumed on a fruitless litigation.
Abdul Matin vs Bangladesh 13 BLC 30.
Section 115—Order XLI, rule 31—
Learned Appellate Judge miserably failed to make thread bare discussion of the evidences on record and after going through the judgment it appears that the learned Appellate Judge only partially discussed the evidences of PW 1 and 2 and he did not evaluate the entire evidence-on-record andfor which the judgment suffers from misreading and non-reading of evidences on record.
Jahirul Islam vs Rokeya Begum 16 BLC 225.
Section 115(1)—
In view of the legal proposition settled by our Appellate Division the judgments under challenge cannot be said to have been based on misreading or non-consideration of evidence or misinterpretation of any material document. The finding of facts arrived at by the Courts below appear to have been based upon consideration of legal evidence and materials on record which do not suffer from any perversity.
Marjina Khatoon vs Shamsunnahar 14 BLC 289.
Section 115(1)—
In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against and interlocutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure. As such, all the respective Rules issued under section 115(1) of the Code of Civil Procedure are liable to be discharged as being not maintainable.
Syed Monjur Morshed vs Agrani Bank Ltd 14 BLC 501.
Section 115(1)—
In the instant case, the suit was decreed by the trial Court and such decree was affirmed by the appellate Court also. The judgment-debtor defendant has got ample scope to file revision before this division if he feels aggrieved with the judgment of the appellate Court, but without filing any revisional application the defendant filed the Review Case in a manner which is apparently not legal, and it is also apparent from the application (Annexure-A to the revisional application) that the learned Joint District Judge had been proceeding with the Review Case in an illegal manner. On perusal of the cited decisions it appears that the review petition which is numbered as a Miscellaneous Review Case itself is not maintainable and there is no illegality with the impugned order.
Bangladesh represented by the DC, Mymensingh vs Md Golam Ambia (Harun) 14 BLC 710.
Section 115(1)—
The argument advanced by the learned Counsel has also legal value that the defendant claimed the suit land through a pattanama which was executed and registered by landlord's predecessors of the plaintiff Noor Jahan Begum and Asam-uddin Patwary granting some lands to Ashraf Ali Bepari and Yosuf Ali Bepari. In the putta the Zamindars (who were also illiterate) reserved the right of transfer by the pattandars in favour of the Zamindars or their heirs and none else. The transfer by the Pattandars or by their heirs are prohibited. In the pattan name the transfer made by the pattandar or their heirs are illegal and void and by the transfer of the pattandars or their heirs the transferees got no title in the property. This aspect of law has not been taken into consideration by the Courts below which is vital point of law. On the basis of above facts I find perverse in the judgment of the Courts below, non-reading of the state-ments of the witnesses and wrong explanation of Municipal Law related to the case. So, the judgments of the Courts below should be interfered by invoking revisional jurisdiction.
Enayetullah Patwary vs Siddiqueullah 14 BLC 737
Section 115(1)—
Since the plaintiff did not put his signature in the Bainanama it cannot be treated as Bainanama or a contract in the eye of law which is not sustainable in law. Because in Bainanama the name and address of the plaintiff has been clearly mentioned as first party vendee and the name and address of the defendant No. 1 has been mentioned as second party vendor. Since the plaintiff himself or anybody else is not denying or challenging that the plaintiff is not first party vendee as such, the signature of plaintiff in the Bainanama is redundant. Moreover, this question was not raised by the defendant-respondent-petitioner before the trial Court and appellate Court. This question was raised for the first time before the revisional Court by the learned Counsel for the petitioner which cannot be legally tenable.
Abu Tara vs Md Abdur Rahim Khan 14 BLC 795.
Section 115(1)—
It appears that the findings arrived at by the Courts below having been rested upon consideration and discussion of legal evidence and materials on record and also on a correct and proper analysis of the legal aspects involved in the case and the findings being findings of fact are not liable to be disturbed by the High Court Division in exercise of power under section 115(1) of the Code of Civil Procedure.
Abdul Awal vs Abdul Hai 12 BLC 487.
Section 115(1)—
The High Court Division without adverting to the findings given by the court of appeal regarding pattan by Basanta Kumar in favour of the plaintiffs by dakhilas, subsequent execution of unilateral kabuliyats by plaintiffs in favour of Basanta Kumar and possession of the defendants in the suit land reversed those finding on reassessment of the entire evidence. Accordingly, the High Court Division committed error of law in making the Rule absolute, which, requires interference by this Court.
Promad Chandra Barman vs Khodeza Khatun 112 BLC (AD) 225.
Section 115(1)—
It was the duty of learned Assistant Judge to maintain his injunction order dated 29-1-2004 unless that order is disturbed by any superior Court but without doing so he has violated his own order and has violated the order of the High Court Division. It is the consistent view of our Appellate Division that in an appropriate case the Court in exercise of its inherent power can issue a temporary injunction in mandatory form to restore the status quo ante in the suit. The learned Assistant Judge, Madhabpur is directed to restore possession in 0.033 acre of land of Plot No. 683, khatian No. 279, Mouza Sultanpur, Police Station Madhabpur, District Habiganj, in favour of the petitioner within 7(seven) days from the date of receipt of this order. The learned Assistant Judge is also directed to dispose of the suit as early as possible preferably within l(one) year from the date of receipt of this order.
Upendra Chandra Paul vs Md Abdul Quadir Chowdhury 11 BLC 494.
Section 115(1)—
The trial Court has recorded a finding that the defendants dispossessed the plaintiffs from the suit land on 4-12-1997 and 7-4-1998 respectively though the trial Court did not assign any reason for such finding and hence the defendants failed to discharge the onus that they were in possession of the suit land after 28-6-1992 till 4-12-1997 and 7-4-1998. By such facts the plaintiffs succeeded in proving that they were in possession of the suit land from 28-6-1992 and they were dispossessed therefrom on 4-12-1997 and 7-4-1998. The suit was filed on 14-7-1998. The suit was therefore, filed within 6 months from the date of the dispossession of the plaintiff from the suit land. There is no error of law or infirmity in the impugned decision of the learned Subordinate Judge calling for interference in the exercise of power under revisional jurisdiction under section 115(1) of the Code of Civil Procedure.
Sabar Mia (Md) vs Abdul Mannan Sarker 11 BLC 609.
Section 115(1)—
Both the court below totally misread and misconstrue the patta-Exhibit 14 and failed to consider that the patta is not original one but a certified copy and it was not produced from proper custody as such, it has got no evidentiary value in the eye of law. The patta in question has wrongly accepted as evidence without any proof of its execution.
Gour Chandra Mohanto Babu vs Md Abu Bakar Siddique 17 BLC 495.
Section 115(1)—
Orders passed by the executing Court are interlocutory orders, and, as such, revision under section 115 of the Code is not maintainable.
Bodiuzzaman Milan vs Bangladesh Commerce Bank Ltd 17 BLC 426.
Section 115(1)—
Finding of the Court of appeal below on title and possession cannot be said to be not based on the evidence on record and if so, they are now binding in revision.
Maleka Khatun vs Manor Ali 17 BLC 378.
Section 115(1)—
It is not possible to ascertain the basis of the certificate given by the Janata Bank about the prevailing rate of interest. It is difficult to ascertain whether the certificate given by Janata Bank is correct or the certificate given by the Bangladesh Bank is genuine. It would be proper to direct the lower Court to ascertain which certificate is genuine and correct, whether the certificate given by the Janata Bank or the papers submitted by the petitioners in the supplementary affidavit.
Gulf Shipping Lines Limited vs Trading Corporation of Bangladesh 17 BLC 643.
Section 115(1)—
The findings of fact whether concurrent or not arrived at by the lower appellate Court are not open to inter-ference as a revisional Court except in certain well-defined exceptional circum-stances, such as non-consideration or misreading of material evidence affecting the merit of the case. The decisions of Court of appeal being last and final Court of fact are not open to interference in revisional jurisdiction unless it is shown that decisions have been based upon gross misreading of evidence or those have been founded on misconception or misinterpretation of any material document or otherwise perverse being contrary to law, evidence and material brought on record.
Sukur Ali Biswas vs Sukurjan Bibi 17 BLC 793.
Section 115(1)—
Since the Special Judge is a 'Court' such Court is sub-ordinate to the High Court Division. Any order passed by a Special Judge is amenable to the High Court Division under section 115 of the Code of Civil Procedure.
Government of Bangladesh vs Abdul Motaleb 17 BLC (AD) 50.
Section 115(1)—
The revisional Court on consideration and appreciation of the evidence on record including DP Parcha filed before it found concurrent findings of the Court of facts correct.
Syed Gulam Shariar vs Md Abdul Mannan 17 BLC (AD) 112.
Section 115(1)—
A judicial order devoid of reasoning causes error of law but mere error of law cannot be a ground for interference unless it has occasioned failure of justice.
Akram Ali Pk. (Md) vs Yasin Ali 17 BLC (AD) 135.
Section 115(1)—Restoration of Rule—
The petitioner did not take any steps within reasonable time but after a lapse of about .7 years on the plea that the matter was misplaced, an application for restoration was filed. The High Court Division did not find the explanation satisfactory. The suit of the plaintiffs was decreed on 31-8-1985 and the appeal there from was dismissed on 27-8-1990. The Rule was discharged in 1992 but there was not explanation for unusual delay thereby accruing a vested right in the respondent. The High Court Division in exercise of its discretion rejected the prayer for restoration of the Rule discharged for default.
Bangladesh vs Abul Hashem 17 BLC (AD) 172.
Section 115(1)—
The Election Appellate Tribunal appears to have applied his mind in the facts and circumstances of the case and the evidence on record keeping in view that there was a difference of only one vote between the petitioner and the opposite-party No. 1 and admittedly 5 ballot papers, which were duly cast during election, were found missing and on consideration of these facts the Election Tribunal came to the conclusion that it would be proper, for ends of justice, if the ballot papers are recounted in presence of the concerned parties. There is no illegality or infirmity in the impugned decision. The Election Tribunal shall consider the gunny bags before opening them to satisfy itself that the gunny bags were not tampered with at any time after the election result was declared.
Khalilur Rahman (Md) vs Md Alam Bepari 13 BLC 36.
Section 115(1)—
The court below misread and non-considered the plaintiffs' witnesses, specially PW 2 and 3. It further appears that Clause-O of section 108 of the Transfer of Property Act was not complied with and the tenant defendant acted contrary to it and changed the leasehold property from showroom to a factory. The property cannot be used for a different purpose from the one contemplated under the lease agreement.
Afzalul Haque vs Md Abdur Razzaque 13 BLC 185.
Section 115(1)—
The people of the Hill Districts of Chittagong are the citizens of this Republic and all laws which are now in force in Bangladesh should be equally applicable to the Hill Districts of Chittagong and in order to give benefit of those laws to the inhabitants of those areas, it is high time for the Executive Organ of the State to take necessary steps for setting up of Civil and Criminal Courts as per provisions of the Code of Civil Procedure, 1908 and the Code Of Criminal Procedure, 1898 forthwith and apply all other laws of the country to that area without any let or hindrance.
Ibrahim (Md) vs Ratan Chandra Nath 13 BLC 349.
Section 115(1)—Lease Period expired— Effect of—
Mere filing an application before the concerned authority for extension of lease does not by itself confer any legal right to continue with the lease of fishery after expiry of the period of lease.
Harendra Chandra Barman vs Bangladesh 15 BLC 60.
Section 115(1)—
Since the opposite parties have no objection if the petitioner is allowed to deposit the monthly rent for the case premise in the name of the opposite parties without any prejudice to them the petitioner should be allowed to deposit the monthly rent without any prejudice to the opposite parties. The House Rent Controller, Narayanganj is also directed to accept the monthly rent if deposited by the petitioner in accordance with the provisions of section 19(l)(ka) of the House Rent Control Act, 1991.
Ismail Hossain vs Syedur Rahman Molla 15 BLC 342.
Section 115(1)—
The Nim-Howla interest of the plaintiff is an encumbrance which is not, ipso-facto, annulled by the revenue sale, but it is annullable at the option of the purchaser. The purchaser may annul under-tenure by institution of a suit or by any other suitable means.
Abdul Khaleque alias Abdul Malek vs Khorshed Alam 15 BLC 817.
Section 115(1)—
The evidence of PWs shows that all the PWs in their respective evidence disclosed that the plaintiff-petitioners are in possession of the suit land. Therefore, in any view of the matter it can be safely said that the finding of the learned Assistant Judge that the plaintiffs could not prove their possession by adducing evidence over the suit land is, intact, not based on proper appreciation of the evidence and materials of the case.
Esahatj AH Mallik vs Mobarak Sheikh 16 BLC 144.
Sections 115(1) and 117—
On a meticulous examination of the evidence on record, documents and other connected papers and after hearing the submission of both the parties it appears that if the case is sent to lower appellate Court for expeditious hearing of the appeals instead of sending the cases to the trial Court for fresh trial and for proper adjudication justice would be met.
ASM Ziaul Hoque vs Lutfar Rahman Molla 13 BLC 803.
Section 115(1)—Order V, rule 17— Order IX, rule 13—
The prima facie onus is on the plaintiffs to have served the summons or notices upon the defendants but we do not find as discussed above that summons were served upon the aforesaid defendant Nos. 2, 3, and 8. I do not also find any order of service of notice dated 10-8-1986 as referred by the learned Judge. The rule is made absolute without any order as to costs and set-aside the judgment and orders of the Courts below, The application under Order IX, rule 13 is allowed and the partition suit No.1317 of 1985 is restored. The defendant petitioners are directed to pay legal expenses of Taka 10,000 to the plaintiff opposite parties within 2(two) months from the receipt of the notice from the Trial Court, failing which the order shall stand cancelled. The Trial Court is also directed to dispose of the suit within 6 months from the date of receipt of the records.
Abdul Wahab Barker vs Shahid Barker 15 BLC 522.
Section 115(1)(2)(3)(4)—
The impugned order for recounting of the ballots not being an order of the Court of Assistant Judge but being that of the Election Tribunal, no revision at all would lie against the same under section 115 of the Code of Civil Procedure. Therefore, the present revisional application of the petitioner under section 115 of the Code of Civil Procedure is not maintainable.
Abdul Khaleque (Md) vs Md Abdul Maleque 11 BLC 424.
Section 115(2)—
The ratio-decidendi of the cited decision shows that the purpose of the review is not the rehearing of the suit in order to correct the earlier findings of the concerned Judge himself. It appears that the learned District Judge interfered with the order of review passed by the trial Court on the ground that the said order is a non-speaking order. Thereafter, the learned District Judge elaborately examined the judgment passed by the Joint District Judge, in the suit considering the evidence on record as if he was dealing with a first appeal but without deciding the errors apparent on the face of the record. Apparently, the learned District Judge missed the scope of review under Order XLVII, rule 1 of the Code. Under such circumstances, the judgment and decree passed by the learned District Judge in exercise of his jurisdiction under section 115(2) of the Code, requires to be set-aside.
Shuhjahan (Md) vs Hamdon Nessa 12 BLC 727.
Section 115(2)—
It appears that no revision now lies to the High Court Division against non-appealable order passed by the Joint District Judge, Senior Assistant Judge or Assistant Judge. Revision would only lie before the District Judge. It may be re-called that neither in the scheme of the Civil Courts Act, 1887 nor in the Code of 1908 there was any scope for the District Judge to exercise revisional power. It is only for the first time by Law Reforms Ordinance, 1978 the District Judge was given the revisional jurisdiction (Ordinance No. XLIX of 1978). But, subsequently, this power was taken away by the Code of Civil Procedure (Amendment) Ordinance, 1983 (Ordinance No. XLVIII of 1983). But this power has now been again conferred on the District Judge by Act XL of 2003.
Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.
Section 115(2)—
On a scrutiny of the scheme of the laws it becomes obvious and clear that a Court which is not invested with appellate power over a matter in appeal is not intended to exercise its Revisional Jurisdiction. Only that court which has appellate jurisdiction can exercise revisional power as per law. Thus it is clear that a Court which cannot exercise jurisdiction over a matter in appeal is not authorised to exercise its revisional jurisdiction. It was not the intention of the legislature. Thus it is inconsistent with the scheme of the Code and the Civil Courts Act, 1887 to invest District Judge with revisional jurisdiction in matters where no appeal lies before the District Judge.
Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.
Section 115(2)—
The District Judge can exercise his power of revision under section 115(2) of the Code where his pecuniary jurisdiction in revisional matter is coextensive with that of his appellate jurisdiction, i.e. where the value of the subject-matter does not exceed the appellate jurisdiction. Therefore, in the instant case the District Judge lacked inherent jurisdiction to entertain the revisional application against the order of learned Joint District Judge as the valuation of the suit is over five lac.
Joysna Ara Amin vs Sudhangshu Bimal Dhar 11 BLC 98.
Section 115(2)(3)(4)—
In the background of the materials on record the High Court Division was not in error in discharging the Rule since in passing the order sought to be revised by the High Court Division no error as to important question of law was committed by the courts below and consequent thereupon there was no failure of justice.
Sheikh Abdul Mazed vs Md Shomrej Ali Mandal 12 BLC (AD) 173.
Section 115(4)—
Considering the facts and circumstances of the case, it would be just and proper to direct the plaintiffs to take delivery of the cargo from the two containers being container Nos. TCHU 2613312 and TCHU 2613375 within 2(two) weeks failing which the Customs Authority are to act as per sections 82 and 201 of the Customs Act and do the needful under the provisions of law.
Lloyds Triestino vs Astra Services Ltd 14 BLC 352.
Section 115(4)—
The learned revisional Court concurred with the view expressed by the trial Court that the report of the Finger Print Expert is a mere piece of evidence to be considered along with other evidence which may be decided at the time of judgment and the trial Court committed no error on any important question of law resulting in erroneous decision occasioning failure of justice and this Court should not interfere with the impugned order of the Courts below.
Amena Khatun vs Md Ayub Khan 14 BLC 839.
Section 115(4)—
Sitting under revisional jurisdiction under section 115(4) of the Code it is very difficult to interfere with findings of the revisional Court below unless it is by passing judgment or order the revisional Court below committed an error of an important question of law resulting in erroneous decision occasioning failure of justice.
Mozaffar Ahmed Meah i'S Rafique Meah 17 BLC 659.
Section 115(4)—
A fresh suit in which the decree obtained in an earlier suit and affirmed by the highest Court is challenged on the ground of fraud, the fresh suit is entertainable and the process of execution can be stayed.
Rasib AH vs Moniruzzaman Chy 17 BLC 459.
Section 115(4)—
The judgments of the Appellate Division which affirmed the ex parte decree dated 23-6-1999 passed by learned Assistant Judge, Nawabganj in Title Suit No. 127 of 1997, it transpires that the impugned judgment dated 16-4-2006 passed by the learned District Judge is manifestly perverse. Because, the finding and decision of the Appellate Division is binding on all the courts below including the High Court Division under Article 111 of the Constitution of Bangladesh. The impugned judgment and order passed by the learned District Judge, Dhaka is absolutely wrong, illegal and manifestly perverse which is liable to be set-aside.
Nurjahan Begum vs AFM Abdullah 13 BLC 535.
Section 115(4)—
We have carefully examined the provisions of section 6(5) and other related sections of the Ain, 2003 together with the application under Order XXI, rule 58 of the Code of Civil Procedure and it appears that the Courts below under the legal obligation rightly treated the claim of the petitioner as 3rd party's claim.
Harunur Rashid Bhuiyan vs Pubali Bank Ltd 15 BLC 458.
Section 115(4)—
If a person can show his bonafide right and title apparent on the face of the record as well as can show fraud and suppression of fact can maintain an application in a proceeding even if he is not a party to that.
Abdul Jalil vs Shah Alam 16 BLC.
Section 115(4)—Order VI, rule 17—
The proposed amendment would settle the question whether during the pendency of suit the plaintiff was dispossessed. This will end all pending controversies between the parties and will not amount to a charge in the nature and character of the suit.
Mostafa Kami vs Md Kamal Hossain 16 BLC 598.
Sections 115(4) and 151—Inexecutable decree need not be stayed—
It is contended on behalf of the petitioner that the learned Joint District Judge has committed a fundamental error in staying the judgment and decree in failing to notice that the decree that was passed was not executable and therefore, there was no scope for staying the judgment and decree passed in the earlier suit. It is further contended that the plaintiff-opposite parties were not parties in the earlier suit and therefore, they could not legally maintain an application for stay of the judgment and decree passed in the earlier suit.
Nazmun Mar Sheikh Eskender Ali 14 BLC 200.
Section 151—
Having considered the submissions advanced by Mr Ahmed and having considered the somewhat odd circumstances prevailing in the instant case, the High Court Division is of the view that for ends of justice, in exercise of its inherent power under section 151 of the Code of Civil Procedure, the judgment and order dated 3-11-2008 passed by the High Court Division requires to be recalled. Accordingly, the application stands allowed.
Asia Feed Mills Ltd vs Bangladesh Bank 15 BLC 827.
Section 151—
The case reported in 1998 BLD 310 supports the case of the appellant to take recourse to inherent power of the Court as provided under section 151 of the Code of Civil Procedure to secure justice. In the instant case, it was categorically stated that the delay was due to wrong advice of the learned Advocate and that it appeared from the records of case below that the mandatory provisions for issuance of summons under the BSRS Order was not complied with and no notice was issued upon the opposite parties of the case, after receipt of the case records from the Artha Rin Adalat. Therefore, the ex parte disposal of Case under the BSRS Order, 1972 as made was not in accordance with law and the learned District Judge ought to have considered such special facts in passing the impugned order rejecting the application for condonation. The view that the learned District Judge proceeded with the application for condonation on wrong approach and thereby arrived at his wrong decision, which has occasioned failure of justice.
Meer Niaz Mohammad vs Bangladesh Shilpa Rin Sangstha 14 BLC 407.
Section 151—
In Civil Revision No. 2573 of 2007, second execution case Was started on the basis of certificate issued by the Adalat under section 33(5) of the Ain in connection with Artha Execution Case No. 76 of 2001, having failed to auction sale the mortgaged property and that the impugned order of warrant of arrest was made after issuance of show cause notice upon the judgment debtors providing opportunity to give reply as to why they should not be detained in civil prison. The petitioners did not appear before the Court. But within a period of one month from the date of issuance of the impugned order they have filed the present revisional application and obtained the present Rule and an interim order of stay. Since the petitioners have not come with clean hand they cannot seek for exercising Court's inherent jurisdiction in the name of ends of justice. Further, considering the relevant provisions of Artha Rin Adalat Ain, 2003 and in the facts and circumstances of the case this Court cannot invoke its inherent power under section 151 of the Code of Civil Procedure.
Syed Monjur Morshed vs Manager, Agrani Bank Ltd 14 BLC 501.
Section 151—
On consideration of the matter, it seems that without taking evidence it cannot be said whether the plaintiff-opposite party has any right, title and possession over the suit land. On this point the Court of appeal below also took the similar view. In the present case the petitioner claimed her right, title and possession in the suit land by way of a registered deed of gift dated 7-12-2005 and the sole defendant of the suit for ejectment categorically stated in his written statement that there is no existence of the plaintiff's suit shop after tornado in November, 1990 and thereafter, the plaintiff did not construct any shop and since then there is no relationship between the plaintiff and defendant as landlord and tenant. In that view of the matter the presence of the petitioner is necessary as defendant to enable the Court effectualy and completely to adjudicate upon and settle all the questions involved in the suit.
Rokeya Begum vs Rezia Begum 14 BLC 747.
Section 151—
The Adalat upon hearing both the parties allowed the application under section 151, CPC after vacating its previous Judgment and Order No. 26 dated 17-5-2001. In view of the matter, the same Court/ Adalat cannot sit over its own judgment in the facts and circumstances of the present case. The same Court/Adalat cannot sit over its own judgment in exercising of its inherent power under section 151 of the Code of Civil Procedure where an alternative remedy is open to the aggrieved party. The Artha Rin Adalat Ain is a special law under which Courts have been constituted with their own forum of appeal. Therefore, there is no hesitation to hold that the impugned order does not reflect the true position of law. In such view of the matter, the Order No. 40 dated 17-10-2001 passed by the Adalat was beyond the power of the Adalat/Court and therefore, it must be held to have been passed without lawful authority and is of no legal effect.
Halima Akter vs Artha Rin Adalat 13 BLC 205.
Section 151—
Petition presented by defendant-respondent for registration of Trade Mark in Class 9 manifests that television, VCD and two-in-one had been subject matters of registration. It has, thus, been admitted by defendant-respondent that Television is, also, included in Class 9 under Fourth Schedule of Trade Mark Rules. Since Trade Mark "CANON" in favour of plaintiff-appellant is registered in Class 9, Television, thus, stood included in Class 9. It does not lie in the mouth of defendant-respondent that Television is not registered in Class 9 under Fourth Schedule of Trade Mark Rules, 1963, in favour of plaintiff-appellant.
Canon Kubushiki Kaisha vs Canon Electronics industries Ltd 13 BLC 256.
Section 151—
The Additional District Judge noticed several decision of our Courts and held that the Court is empowered to pass order under section 151 of the Code of Civil Procedure even where the application was made under Order XXXIX, rules 1 and 2 and this can be done for ends of justice and the High Court Division should not interfere against such order under its revisional jurisdiction. The Additional District Judge also noticed the proposition of law as available under section 151 of the Code of Civil Procedure and held that mandatory injunction would be available if dispossession had taken place during the pendency of the suit or during an order of ad-interim injunction. The Additional District Judge came to a clear finding that the plaintiff was in possession of the suit land when the order of status quo was passed and that the plaintiff was dispossessed from the suit market during the pendency of the order of status quo. Accordingly, by judgment and order dated 7-8-2004 the Additional District Judge dismissed the revisional application and affirmed the decision of the trial Court allowing the prayer for mandatory injunction.
Abdul Baki vs Farooque Ahmed 13 BLC (AD) 128.
Section 151—
A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of the suit. The learned Advocate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation, ton Sina
Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.
Section 151—
The letter dated 3-6-03 of the plaintiff must be taken to be one to obviate release of the yarn shipped and that cannot forfeit the plaintiff in asking the bank for stopping payment of the price of at least remainder of the yarn not at all supplied. And defendant No. 1 is not entitled to any payment of the price of yarn which he never supplied. Plaintiff, therefore, no doubt has got an arguable case in respect of 22,030 Ibs of yarn. The view of the learned Joint District Judge that the plaintiff could not establish the balance of convenience and inconvenience in his favour cannot be accepted Appeal therefore, succeeds.
Reya Sweaters (Pvt) Ltd vs Sephard Textiles (BD) Ltd 11 BLC 234.
Section 151—
The remedy of injunction under section 151 of the Code is available to the judgment-debtor-cum-plaintiff of the fresh suit against a decree holder-cum defendant of that suit for the purpose of stopping the execution process of a decree which is under investigation in subsequent suit.
Rasib Ali vs Monir-uz-zaman Chowdhury 17 BLC 459.
Section 151—
None of the OPWs stated a single word on the service of summons on defendant No. 1 but the records show that after the receipt of the return the trial Court fixed a date for ex parte disposal but before fixing the date, the trial Court has not looked into the service return. In the present case in a hot haste an ex parte decree was obtained which indicates that a fraud was committed upon the Court as well as upon the defendants and when a fraud is proved, then there is no question of limitation and time will run from the date when the fraud is detected and so, the question of limitation does not arise in the present case; even as, for argument's sake, it is conceded that the fraud was detected earlier, even then the Court is not debarred to interfere under section 151 of the Code.
Hyder All Mia (Md) vs Razin Begum 12 BLC (AD) 75.
Section 151—Order VII, rule 11— Order XXI, rule 58—
The application filed by the opposite-party, Sonali Bank under Order VII, rule 11 of the Code of Civil Procedure for rejection of the Misc. Case under Order XXI, rule 58 read with section 151 of the Code of Procedure for realization of project loan was misconceived as well as not maintainable and, the executing Court erred in law in allowing the said application by the impugned judgment and order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
Bangladesh Shilpa Bank vs Sonali Bank 16 BLC 566.
Section 151—Order I, rule 10—
Innumerous decision our apex Court came to conclusion that only on the ground of non speaking order the High Court Division should not set-aside any order rather the High Court Division should examine the case of the parties in its entirety. In the present case in hand in appears that the present petitioner in no way connected with the claim of the plaintiff in any manner. The entire claim is against the principal defendant. By the application under Order I, rule 10 of the Code of Civil Procedure the plaintiff is trying to introducing a new case which is not sustainable in the eye of law. Order I, rule 10 of the Code of Civil Procedure does not contemplates any such provision. The trial Court committed an error in passing the impugned order occasioning failure of justice.
Chartered Bank vs Macneill & Kilburn 15 BLC 687.
Section 151—Order XXXIX, rules 1and 2—
In this case, it is found that the ingredients for granting temporary injunction in favour of the plaintiff-appellant are wholly absent. Upon a careful scrutiny of the entire available materials on record, it appears that the plaintiff has neither a prima-facie nor arguable case in which the defendants cannot be restrained from making construction on the suit land taking the risk that entire building will liable to be demolished or the plaintiff would get the building if the plaintiff gets a decree in future. In the facts and circumstances of the case, we do not think it would be justified to continue order of status-quo which virtually means an order of injunction against the ongoing construction work in the suit property when the plaintiff does not have any prima facie arguable case.
Mahbub Hossain Khan vs Sheikh Salanddin Ahmmed 15 BLC 689.
Section 152—
As it appears the High Court Division rejected the revisional application summarily holding that the prayer as made in the application dated 2-11-2004 for setting-aside the judgment and decree dated 25-7-2004 being not covered by section 152, CPC, the Court cannot allow such relief and further, the Court became functus officio after passing of the judgment and decree.
Dr. SM Yunus AH vs Joint District Judge and Artha Rin Adalat 14 BLC (AD)55,
Order I, rule 10(2)—
Under Order I, rule 10(2) of the Code should be exercised for the ends of justice if it is required to transfer from one side to another. On the other hand, the refusal to do so prejudicially affected the aggrieved person by driving him to another suit.
Moinuddin (Md) vs Deputy Commissioner, Dhaka 17 BLC 799.
Order I, rule 1—
The High Court Division correctly found that the suit in question is maintainable under Order I Rule 1 of the Code of Civil Procedure as the plaintiff's cause of action arose from the same transaction.
Zahur Ali Sk vs Jogendra Nath Samddar 16 BLC (AD) 35.
Order I, rule 8—
Admittedly, the instant suit is a public interest litigation brought by the plaintiff in the interest of Rajshahi University. The trial Court complying the guiding principles for passing an order of temporary injunction and being satisfied he granted the temporary injunction arriving at dear prima facie finding in consideration of the documents filed that the appointments have been made in breach and violation of the circulars, rules and procedures, guidelines, without public notification, etc. On the other hand, the appellate Court below has set-aside and vacated the same putting much emphasis on the humanitarian ground rather than looking into merit of rules and procedures, guidelines, budgetary provision, requirements, public notification, etc for making such huge appointments. It also appears that the finding of the appellate Court that the appointments were made in the necessity of the University is also without footing and not supported by any documents filed by the defendants.
Abu Aslam (Md) Advocate, Rajshahi District Bar Association vs Rajshahi University 11 BLC 294.
Order I, rules 9 & 10—
Neither of the Courts below gave any finding that the suit is not maintainable for defect of parties nor the same was agitated before any of the Courts below by the contesting defendants-opposite parties. In that view of the matter, it cannot be said that the suit was bad for defect of parties and for that reason the Court could not effectively adjudicate the dispute in issue in the suit.
Musaraf Sultana vs Principal & Member-Secretary, Knnchipara Mahabidhyalays 12 BLC 505.
Order I, rules 9 and 10(2)—-
The High Court Division on the point of non-joinder of the parties has correctly held that the purcharers of the part of the suit property being the transferees of the defendant No. 1, will stand or fall along with the defendant No. 1 and so their absence the right, title and inferest of the parties may be effectively disposed of.
Ruhul Amin vs Official Liquidator, Mahaluxmi Bank Ltd 14 BLC (AD) 1.
Order I, rule 10—
The petitioner being the defendants may still raise the question of liability which they did not raise at the time of framing of issues in the suit by filing an application under section 13 of the Artha Rin Adalat Ain, 2003 and the Court may, on such application, adjudicate upon the question of liability of the present petitioners as issues of law. The Adalat exercised its discretionary power under Order I, rule 10 of the Code of Civil Procedure in rejecting the application having found that the liability will be determined between the parties at the trial of the suit and the defendants are necessary parties. Therefore, the Adalat has exercised its jurisdiction justly. There is no substance in the Rule.
Prime Global Ltd vs Artha Rin Adalat 11 BLC 236.
Order I, rule 10—
From the materials on record it is seen that opposite-party No.4 in his application for being added as the party in suit did not disclose any tangible case in support of her being a necessary or proper party in the suit for effective adjudication of the subject matter of the suit. In that state of the matter, the High Court Division did not commit any error in making the Rule absolute and thereupon setting-aside the order of the trial Court adding the opposite-party No.4 as defendant in the suit.
Khairunnessa vs Syed Mainul Haq 12 BLC (AD) 82.
Order I, rule 10—
As per Order I, rule 10 of the Code of Civil Procedure no suit can be dismissed on the ground misjoinder of parties. Per Sharif Uddin Chaklader, J (dele-vering the main judgment)
MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.
Order I, rule 10—
In view of the statements made by the learned Advocate of both sides it transpires that disputed questions of facts are involved in the proceedings and in view of the presence of such disputed facts those should be resolved once for all by the trial court itself upon adding the applicants as defendants in the instant suit.
Sanjib Kumar Ghosh vs Tarak Nath Ghosh 15 BLC 495.
Order I, rule 10(2)—
The provision of addition of parties under Order I, rule 10(2) is an independent provision. One can be made party or one can be struck off from the pleading if so required. The law enjoins that a person who is necessary for the proper disposal of the case should be made a party as it has been in the present case. So where is the wrong? If we analyze the chain of facts we cannot say that under the grab of addition of party there is a substitution, which Mr Hoque contends to be a nullity and not sustainable under law.
Ferdous Amin Siam vs Artha Rin Adalat 17 BLC 195
Order I, rules 10(2)—
None should be condemned unheard" but in the instant case while plaintiff's lawyer was allowed time and under such circumstance no order with regard to addition of party should have been passed at his back while his objection remained pending. And apart from that the Order by itself was a non-speaking Order without explaining any justification or reasons for allowing the application for addition of parties by regarding objection submitted by the plaintiff, is nothing but an exposition of failure to accord justice.
Tarek Hasan vs Abdul Malek 17 BLC 385.
Order I, rule 10(2)—
The court at any stage of the proceeding either upon receiving an application from either of the parities or even suo moto can strike out the name of any defendant.
Philips Nelson Michael Marsham vs MNS Knit Wear Limited 17 BLC 603
Order I, rule 10(2)—
On consideration of [he matter, it seems that without taking evidence it cannot be said whether the plaintiff-opposite-party has any right, title and possession over the suit land. On this point the Court of appeal below also took the similar view. In the present case the petitioner claimed her right, title and possession in the suit land by way of a registered deed of gift dated 7-12-2005 and the sole defendant of the suit for ejectment categorically stated in his written statement that there is no existence of the plaintiff's suit shop after tornado in November, 1990 and thereafter, the plaintiff did not construct any shop and since then there is no relationship between the plaintiff and defendant as landlord and tenant. In that view of the matter the presence of the petitioner is necessary as defendant to enable the Court effectualy and completely to adjudicate upon and settle all the questions involved in the suit.
Rokeya Begum vs Rezia Eegum 14 BLC 747.
Order I, rule 10(2)—Section 151—
Although normally in case of Specific Performance of Contract, 3rd party cannot be added as it relates between two parties of the agreement i.e. vendor and vendee but in some cases where there exists a special case, 3rd party can be added. Per Sharif Uddin Chaklader, J (delevering the main judgment) MA
Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.
Order I, rule 13—
These evidences go to show that the fact of contract, writing of the agreement, execution of the agreement, payment of consideration as stated in the plaint have been contradicted by all the witnesses leading to the presumption that the case of the plaintiff was founded upon bundles of falsehood. In view of the above, it is held that no payment of consideration money was made by the plaintiff as alleged. SM
Kutub-uddin vs Aftab Ali (Captain Reid) Bir Pratik 13 BLC 782.
Order I, rules 19(2)—Addition of party —
The proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff in order to avoid all controversies.
Begum Kohinoor Alam vs Md Yousuf Sikder 17 BLC 224.
Order II, rule 2—
In this particular case, the defendants by filing an application under Order II, rule 2 of the Code have sought to obtain from the Adalat an order in their favour absolving them of their liabilities as guarantors on the basis of substantive provisions of the Contract Act. The application under Order VII, rule 10 of the Code appears to be a device to further delay the disposal of the suit and it is on this count alone that the petitioners ought to be precluded from raising a challenge to the jurisdiction of the Adalat. If the defaulting borrowers are allowed to circumvent the due process of law, then the intents and purposes of the legislature i.e. the Parliament and the underlying public policy will be defeated and undermined. Refusing the International Finance Corporation a right of action in Bangladesh under the Artha Rin Adalat Ain would be tantamount to denying that the Loan Agreements had conferred any right on it. The action for recovery of the loan in Money Suit No. 3 of 2000 before the Artha Rin Adalat No. 2, Dhaka should be allowed to proceed.
Mostaque Alam Chowdhury vs Court of Joint District Judge and 2nd Artha Rin Adalat, Dhaka II BLC 145.
Order III, rule 2—
Upon a perusal of the documents as produced by and on behalf of the defendant Nos. 1,2,5 and 15 this Court finds no reason to question the scope and validity of the agency powers vested in the concerned Protecting and Declaring Agents to represent their foreign principals before this Court in all matters pertaining to and arising out of this Suit.
HRC Shipping Ltd vs 'MV Lady Fatima' (Admiralty Jurisdiction) 13 BLC 763.
Order III, rule 4—
Sub-rule (1) of rule 4 of Order III of the Code of Civil Procedure has clearly referred to pleader and court and pleader definitely does not include a trade marks agent therefore, the bar of the said provision of law cannot be invoked in debarring a trade marks agent from representing a person to file TM-55. Moreso, the Act of 1940 being a Special Statute and section 80 thereof having clearly provided for representation of a person through a trade marks agent registered in the prescribed manner the provisions of sub-rule (1) of rule 4 of Order III of the Code of Civil Procedure cannot be invoked. Besides, by now, it is a settled proposition of law that even a third party can prefer appeal if he is affected or aggrieved by any order or decree.
General Biscuits Belgie, Belgium vsPrince Hotel Bakery & Food Products (Statutory) 12 BLC 469.
Order V, rules 11, 12 and 15—
Taking into account pleadings of parties, evidences, especially evidence of DW 3, and materials brought on record, especially Exhibit 1, service return, and fact and circumstances of the case, it appears that Siimmons upon plaintiff-opposite-party had not been served in accordance with law and service was invalid and same had been fraudulently suppressed.
Momin Miah vs Md Shafiullah Patiuari 13 BLC 86.
Order V, rule 17—Order IX, rule 13—
The prima facie onus is on the plaintiffs to have served the summons or notices upon the defendants but we do not find as discussed above that summons were served upon the aforesaid defendant Nos. 2, 3, and 8.1 do not also find any order of service of notice dated 10-8-1986 as referred by the learned Judge. The rule is made absolute without any order as to costs and set-aside the judgment and orders of the Courts below, The application under Order IX, rule 13 is allowed and the partition suit No.1317 of 1985 is restored. The defendant petitioners are directed to pay legal expenses of Taka 10,000 to the plaintiff opposite parties within 2(two) months from the receipt of the notice from the Trial Court, failing which the order shall stand cancelled. The Trial Court is also directed to dispose of the suit within 6 months from the date of receipt of the records.
Abdul Wahab Sarker vs Md Shahid Sarker 15 BLC 522.
Order V, rules 19 & 19A—
In passing an ex-parte decree Court must be satisfied that summons/notices were duly served on the loanee and to have a satisfaction on service of summons Court must consider the process servers report and also the deposition of the process server or postal peon. It is the duty of the petitioner, House Building Finance Corporation, in whose favour the ex-parte decrees were passed, to prove service of summons by producing reliable evidence. Rule 19 of Order V of Code of Civil Procedure cast a duty on Court to examine the postal peon/process server before passing an ex-parte decree. The Court ought to have considered the declaration of process server made under Rule 19A of Order V of Code of Civil procedure as evidence before ex-parte decree is passed. Ex-parte decree speaks some fishy fishy in obtaining the same.
Begum Shirin Akhtar vs Bangladesh House Building Finance Corporation 16 BLC 1.
Order V, rule 19A—
Both the Courts below took into account pleadings of parties, evidences adduced from both sides, specially evidence of OPW 5 process-server and various orders recorded that the Suit came to positive decision that defendants-petitioners were well aware of original Suit and they were substituted on the death of their predecessor and summons had been duly served upon them. Court of appeal, also, found that Miscellaneous Case was rightly dismissed on a detailed discussion and it found no justification nor any ground to interfere with decision rendered by learned Joint District Judge which does not at all warrant interference.
Syeda Helali Begum vs Shanti Mary Cmez 11 BLC 661.
Order V, rule 19B—
None of the OPWs stated a single word on the service of summons on defendant No. 1 but the records show that after the receipt of the return the trial Court fixed a date for ex parte disposal but before fixing the date, the trial Court has not looked into the service return.
In the present case in a hot haste an ex parte decree was obtained which indicates that a fraud was committed upon the Court as well as upon the defendants and when a fraud is proved, then there is no question of limitation and time will run from the date when the fraud is detected and so, the question of limitation does not arise in the present case; even as, for argument's sake, it is conceded mat the fraud was detected earlier, even then the Court is not debarred to interfere under section 151 of the Code.
HyderAli Mia vs Razia Begum 12 BLC (AD) 75.
Order V, rule 19B—
In the instant case, the appellant who was respondent in the Miscellaneous Appeal No. 7 of 1989 did not lead any evidence to show that the address at which summons was sent by registered post was not his address at the relevant time and that postal peon did not tender the registered envelope to him and, as such, there was no occasion for him to refuse acceptance thereof. In the afore state of the matter, the High Court Division was quite correct in holding that summons of the appeal i.e. Miscellaneous Appeal No.7 of 1989, was duly and properly served on the respondent No.2 in the Miscellaneous Appeal No.7 of 1989, who is the appellant in the instant appeal.
Abdur Rob Mollah vs Shahabuddin Ahmed 12 BLC (AD) 118.
Order V, rule 198(2)—
The mode in which personal service of summons was effected on the respondent No. 2 of the Miscellaneous Appeal No. 7 of 1989 i.e. appellant herein, in the eye of law was not a due and proper service of summons or the petitioner in the Miscellaneous Case who was respondent No. 2 in the Miscellaneous Appeal since his mother was not his authorised agent to receive the summons of the Miscellaneous Appeal on his behalf.
Abdur Rob Mollah vs Slwhabuddin Ahmed 12 BLC (AD) 118.
Order V, rule 19B(2)—
The learned Additional District Judge was in error in holding since acknowledge receipt was not received by the Court consequently summons sent by registered post cannot be considered due service of summons by registered post as because proviso to sub-rule 2 of rule 19B of the Code of Civil Procedure provides that when the summons was sent by registered post with acknowledgment receipt due and that after 30 days even if acknowledge is lost or mislaid or for any other reason, was not received by the Court it would be considered that the summons was duly served by the registered post.
Abdur Rob Mollah vs Shahab-uddin 12 BLC (AD) 118.
Order VI, rule 1—
It appears that the defendants later changed their stand stating, inter alia, that the suit property was settled by Khan Bahadur Asaddar Ali Khan Waqf Estate with Aslam, son of Md Hekim. This is, in fact, a third case made out at a very late end of the day. The case of alleged settlement is not available in the pleadings of the defendants or at any stage of hearing before the trial Court or lower appellate Court, the Courts of fact. The story thus produced now before the Appellate Division appears to be a vain bid to keep the ship afloat already wrecked in the tempest-tossed ocean. No credence can be given to such belated story.
Tara Mia vs Babru Mia 12 BLC (AD) 222.
Order VI, rule 1—Order VIII, rules 1, 3, 4 and 5—
According to the law of pleadings, the defendant is bound to deal specifically each allegations of fact, the truth of which is not admitted. The written statement must not only deal with specifically, the defendant must also answer the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such event, the admission itself being proof, no other proof is necessary.
Zafela Begum vs Atikulla 16 BLC (AD) 46.
Order VI, rule 2—
The suit land has been described as 'his property as Shilmondi on Dhaka-Sylhet road' is entirely vague, unspecified, imaginary but from the plaint it appears that 5 schedule of lands have given covering huge lands of several plots which have not been the lands of bainapatra as these lands have not been mentioned in the bainapatra. These lands having not been reflected in the bainapatra, as such, on this bainapatra no decree can be passed for the lands mentioned in schedule A to E of the plaint.
Roshanally Mohamed Harji vs AKM Zakir Hossain 16 BLC 85.
Order VI, rules 2 and 4—
The generality and obscurity of the plea of fraud and collusion arising in this case left no scope but for the lower appellate Court to proceed to consider the case by effectively dismembering the words "fraud" and "collusion" from the general body of the plaint and find at the end of the day that, in all probability, and based on documents and evidence available, the acts alleged were, in fact, not tainted with any illegal character and purpose.
Rehan Ali (Md) & Ekendali vs Md Altab AH 11 BLC 28.
Order VI, rule 4—
Summons upon the defendants were not at all served or there is nothing on record to show that the government appeared and contested that suit. Thus it is evident that the defendant was prevented by sufficient cause from appearing before the Court when the suit No. 329 of 1974 was called on for hearing. Moreover, it is worthy to state that when the elements of fraud and collusion is manifested in procuring the ex parte decree, that decree vitiates.
Bangladesh vs Serajul Haque 11 BLC 714.
Order VI, rule 4—
The defendants-respondents obtained the ex parte decree in Title Suit No. 329 of 1974 suppressing summons collusively and practising fraud upon the Court. Again, the defendants-respondents manufacturing some false and concocted amalnama, dhakhilas and khatians tried to validate the evil design of grabbing huge quantum of the forest khas land practising fraud upon the Court and their evil design has been revealed in the appeal. The essence of law being to advance the cause of justice and not to frustrate it. If fraud is allowed to be perpetrated and perpetuated the sanctity attached to law will wither away with disastrous consequences to the society.
Bangladesh vs Serajul Haque 11 BLC 714.
Order VI, rule 14—
It is contended on behalf of the respondent Nos. 1 to 6 that the respondent No.3 and the General Manager (Finance) cum-Company Secretary are in the clear by virtue of being such of the several functionaries contemplated under Order XXIX, rule 1 as having the authority to sign and verify pleadings as they have indeed done. Given such submissions, it does appear to this Court that the argument as to the ostensible lack of the authority of the above two individuals to so act is without merit. Further, for a proper understanding of the provisions of Order XXIX, rule 1 this Court has deemed it pertinent to probe into those of Order VI, rule 14 as require the signing of pleadings by a party and its pleader, if any. In the event of such a party being a juristic entity as a company it is inevitable that the pleadings shall have to be signed by some person or the other on behalf of the company. Order XXIX, rule 1, it is found, is intended to meet that contingency and its provisions as referred to above aptly facilitate that process. This Court, in this regard, has taken note of the Indian Supreme Court's judgment in United Bank of India vs Naresh Kumar reported in AIR 1997 SC 3 as upholds that interpretation and reading of Order VI, rule 14 together with Order XXIX, rule 1 of the Code.
In this regard, it is found that the offices of Vice-Chairman/Chairman and General Manager (Finance)-cum-Company Secretary are sufficiently enabling to clothe such officeholders with the authority as enunciated above and consequently are declaratory of the absence of any infirmity attaching to these office-holders to sign and verify pleadings on behalf of the Company.
MM Ali Ispahani vs MM Ispahani Ltd 14 BLC.
Order VI, rule 17—
The present case is considered a fit case for remand to the appellate Court below for consideration of the application for amendment to the plaint as well as for admission of the basic documents of title filed in that Court by the plaintiff-petitioner by a firishti during the pendency of the appeal as additional evidence by giving opportunity to the defendant-opposite-party No.l to adduce fresh evidence, if any, and then dispose of the appeal afresh.
Kaniz Fatema alias Beauty vs Syed Ruhul Amin 11 BLC 123.
Order VI, rule 17—
In the meantime, the plaintiffs filed an application for amendment for inclusion of compensation of 523 days from 26-9-2002 to 2-3-2004 for avoiding multiplicity of suits. In the instant case, the subject-matter of amendment is to include the compensation of 523 days from 26-9-2002 to 2-3-2004 of Taka 21,83,48,020 in place of Taka 7,21,65,014 which was claimed earlier and this amendment includes some additional reliefs which will not change the nature and character of the suit, rather this sort of amendment will avoid the multiplicity of suits.
Talukder Chemical Ltd vs Titas Gas Transmission and Distribution Company Ltd 11 BLC 224.
Order VI, rule 17—
Plaintiffs-petitioners by way of amendment sought relief in respect of a compromise decree which they allege to be forged and, also, insertion of some material facts in obtaining the compromise decree and some other incidental reliefs. The proposed amendment does not at all demonstrate that complexion of the suit has been totally changed and the amendment is not in consonance with the laws and principles controlling amendment of plaint. Petition for amendment of plaint was required to be accepted and allowed by learned Assistant Judge.
Afsaruddin Minn (Hazi) vs Sk Sultan All 11 BLC 534.
Order VI, rule 17—
When the plaintiff No. 2 during the pendency of the suit in the trial Court by submitting a compromise petition relinquished his claim over 20 decimals of the suit land then the plaintiff Nos. 1 and 3 ought to have amended the schedule of the suit land but the plaintiffs did not do so. This observation made by the trial Court was absolutely correct but the lower appellate Court did not at all consider this vital and material point and did not mention anything in his judgment on this point.
Abdul Jabbar Bhuiyan vs Kulsum Banu 13 BLC 435.
Order VI, rule 17—
While exercising any discretion under Order VI, rule 17 of the Code of Civil Procedure the Court is required to assign its reasons so that when the order is called in question, the higher Court may be in position to see that there has been application of mind by the Court concerned and that it is aware of the principles involved in the exercise of its discretion.
Akram Ali Pk. vs Yasin AH 17 BLC (AD) 135.
Order VI, rule 17—
Amendment is always necessary to determine the real question of controversy between the parties, otherwise there is likelihood of croping-up of multifarious litigations.
Akram Ali Pk. (Md) vs Yasin AH 17 BLC (AD) 135.
Order VI, rule 17—
It transpires that although the impugned order is non-speaking and slipshod but it will not prejudice the defendant in any manner at this stage. It further appears that the proposed amendment will not change the nature and character of the suit. Since the Court is fully empowered to allow an amendment by either parties of their pleadings at any stage of the proceedings without changing the nature and character of the suit and no error of law was committed by the learned 2nd Additional Assistant Judge, Dhaka by passing the impugned order dated 15-6-97, as such, no interference is called for.
Nasiruddin Nasu vs East West Property Development (Pvt) Ltd U BLC649.
Order VI, rule 17—
It is well settled that the proposed amendment cannot be allowed to fill up the lacuna of the suit. It further transpires that the applications for proposed amendment of plaint and re-calling of PW 1 were filed after long lapse of seven years from the date of filing of the suit. Hence, both the applications were filed at the belated stage and the Court of appeal below rightly rejected both the applications. Belated prayer for amendment of a plaint tending to change the nature and character of the suit is not entertainable.
Abdul Khair Mollah vs Golafer-nessa 14 BLC 734.
Order VII, rule 3—
The claimed land of the plaintiff has been very specifically and properly described in the schedule of the plaint inasmuch as the boundary of 18 decimals of land has also been described in the plaint. Apart from this I have gone through the schedule of the title deeds of purchase by the mother of the plaintiffs being of the year 1943 and 1950 and also in the schedule of both the deeds I find that the schedule as given in the plaint is exactly right that of the schedule given in the title deeds. Moreover, the local investigation report submitted by the learned Advocate Commissioner also speaks of truth of claim of the plaintiff and the learned Appellate Judge has very consciously taken into consideration this aspect of the case and thus arrived at his decision for decreeing the suit. Hence without filing partition suit the present suit is quite maintainable.
Bangladesh Raihvay Board vs Atar AH 14 BLC 556.
Order VII, rule 3—
On a careful perusal of the plaint, it seems that the plaintiffs in order to get an order of injunction failed to give clear description of the land as required under Order VII, rule 3 of the Code of Civil Procedure. Since the suit land is not ascer-tainable and unspecified, the plaintiffs are not entitled to get an order of injunction on the land in question.
Abdur Rouf vs Abdul Odued Jaigirdnr 14 BLC 805.
Order VII, rule 3—
Law as in Order VII, rule 3 of the Code of Civil Procedure requires the plaintiff to give clear description of the land in suit so that the land in suit is identifiable. In the instant case, it is seen that the particulars of the land as in Schedule 'Ga' to the plaint is vague and unspecified. In that state of the matter, it is clear that the plaintiffs have sought for declaration of title in respect of unspecified/vague and undivided land. If the land in suit is vague, unspecified and that relief sought is in respect of undivided portion of land of particular plot(s) in that case suit seeking mere declaration of title is not maintainable.
Ershad All Howlader vs Santi Rani Dhupi 12 BLC (AD) 36.
Order VII, rule 3—
The plaintiff sought for declaration of title in part of a number of plots without specifying the area. The learned Advocate for the petitioner failed to show any evidence regarding plaintiff's possession in the suit land and hence the suit is barred under the proviso of section 42 of the Specific Relief Act and also under Order VII, rule 3 of the Code of Civil Procedure.
Abdul Malek Howlader vs Deputy Commissioner, Barisal and ors 11 BLC 325.
Order VII, rule 3—
The plaintiffs have failed to demarcate and identify the lands of Suit No. 101 of 2004 and also failed to establish the contiguity of land with 'B' Schedule land. On top of that, the plaintiffs have failed to comply with the provisions of Order VII, rule 3 of the Code.
Ymmusco K Textiles Ltd vs Jamuna Knitting and Dyeing Ltd 12 BLC 202.
Order VII, rule 3—
The learned Advo-cate-on-Record submitted that the appellate Court was in error in holding that the land of patta dated February 18,1922 corresponds to the land of Plot No..240. The contention is of no merit as it is seen from the materials on record, and particularly from the judgment of the appellate Court, which court on detailed discussions of the evidence arrived at finding that the parties to the suit admitted that the land of patta dated February 18, 1922 is the land of Plot No.240. It may be mentioned the land of patta dated February 18, 1922 wss described by boundaries and the explanation as to that was that at the relevant time the land was not divided into plots and this fact is not disputed by the parties to the suit.
Daliluddin Sheikh vs Alek Sheikh alias Abdul Malek Sheikh 14 BLC (AD) 32.
Order VII, rule 3—
This is not an agricultural land in rural area where is a matter of established principle boundary prevails in case of dispute between area and boundary. We have no reason to hold that the same principle is equally applicable in respect of residential plot in a Metropolitan area where land was measured and its price fixed per square yard and square foot.
Dr SKM Joynul Abedin vs Bangladesh 15 BLC 198.
Order VII, rule 4—
The plaintiff could not prove by adducing evidence that fraud was practiced on him when the Nikhanama was registered. It is very much clear from the materials on record and the evidence of wit: nesses that the plaintiff and defendant eloped from their houses and stayed in various places against which the defendant's father filed a complaint with the local police station and the plaintiff's brother was detained and subsequently at the intervention of the local Union Parishad Chairman, the brother of the plaintiff was released and the local Chairman held arbitration to solve the dispute. The plaintiff's witnesses also admitted about the marriage. The Courts below found that the marriage took place between the parties which was consummated as both the parties lived together for some time as husband and wife. The fact that the petitioner was a minor at the time of marriage was not believed by the Courts below. Concurrent findings of the Courts below was not disturbed in the absence of error of law or procedure affecting merit of the case.
Abul Kalam Gazi (Md) vs Numnnahar (Shantu) 11 BLC 242.
Order VII, rule 10—
The application under Order VII, rule 10 of the Code appears to be a device to further delay the disposal of the suit and it is on this count alone that the petitioners ought to be precluded from raising a challenge to the jurisdiction of the Adalat. If the defaulting borrowers are allowed to circumvent the due process of law, then the intents and purposes of the legislature i.e. the Parliament and the underlying public policy will be defeated and undermined. Refusing the International Finance Corporation a right of action in Bangladesh under the Artha Rin Adalat Ain would be tantamount to denying that the Loan Agreements had conferred any right on it. The action for recovery of the loan in Money Suit No. 3 of 2000 before the Artha Rin Adalat No. 1, Dhaka should be allowed to proceed.
Mostaque Alum Chowdhury vs Court of ]oint District Judge and 2nd Artha Rin Adalat, Dhaka II BLC 245.
Order VII, rules 10 and 11—
Considering the convenience of the respondent No. 2 in a situation like the instant one, the appellant is not competent to file the suit as filed in the Court of Sub-ordinate Judge, Dhaka impleading the respondent No. 1 whose Head Office is at Dhaka and carries on business through its branches in Rangpur and other places. The High Court Division has quite correctly passed the order for return of the plaint to the learned Advocate of the appellant for filing the same in the appropriate Court.
Habibur Rahman (Md) vs Uttara Bank Ltd 11 BLC (AD) 59.
Order VII, rule 11—
Separate suit brought to challenge any order or decree passed by the Artha Rin Adalat being barred by law the plaint is liable to be rejected under Order VII, rule 11 of the CPC. Per Sheikh Abdul Awal, J (delivering the main judgment).
Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.
Order VII, rule 11—
Since the intention of law is not to put a person unconnected with loan transaction into the rigorous procedure of a special statute for protection of his property. He can, therefore, maintain his suit in an ordinary civil Court for relief. Per
M. Moazzam Husain J (dissenting). Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 277.
Order VII, rule 11—
Section 6 of the Artha Rin Adalat Ain, 1990 or for that matter Section 20 of Ain,2003 create a bar in proceeding with a subsequent suit making a prayer for setting-aside an ex-parte decree even on the ground of fraud or even with a prayer for another declaration for the Power of Attorney and Memorandum of Deposit of Title Documents as forged, fabricated and false rather the only remedy available for the opposite-party No. 1 was to go for an application under Order IX Rule 13 of the Code of Civil Procedure or an appeal under Section 7 or Section 41 of the Artha Rin Adalat Ain, 1990 and 2003 respectively. Per Nozrul Islam Chowdhury J (Agreeing with Awal, J)
Arab Bangladesh Bank Ltd vs Md. Salauddin 16 BLC 293.
Order VII, rule 11—
Unless the said provisions are complied with, no cause of action for institution of a suit for specific performance or recession of the contract would lie. The learned Joint District Judge on consideration of the statement in the plaint and the written objection rightly held that this point may well be agitated and decided at the preemptory hearing of the suit.
Fnrah Naz vs Mahbuba Hasnat Klwn 16 BLC 484.
Order VII, rule 11—
In this backdrop as well as the principles laid down in the cited decisions so far as it relates to the question whether the provision of the statute is mandatory or directory, it appears that the provision of section 46 of the Ain, 2003 so far it relates to the question of filing the suit by the bank or financial institution against the borrower within specified time is directory and not at all mandatory and therefore, in any view of the matter, the suit is not barred by limitation. Thus, there is no illegality or impropriety in the impugned order of the learned Judge of Artha Rin Adalat No. 1, Dhaka. Hence, the Rule fails.
Shahabuddin Khan vs Bangladesh 11 BLC 111.
Order VII, rule 11—
In equity, good conscience and administration of justice as well as in interest of majesty of law and sanctity and finality of judicial verdicts of Superior Courts, provision engrafted in Order VII, rule 11 and section 151 of The Code is to be invoked and exercised to bury Title Suit No.165 of 1985 laid by plaintiff-opposite-party at the threshold.
Abdul Matin vs Bangladesh 13 BLC 30.
Order VII, rule 11—
On consideration of the averments of the plaint, it appears that the amount claimed by the bank in the suit comes within the definition of "W in which the Artha Rin Adalat Ain is fully competent to adjudicate the matter and find out the actual dues of the bank, if any, and then pass necessary order. It appears that the Adalat committed no illegality in rejecting the application filed by the defendant-petitioner under Order VII, rule 10 of the Code and, as such, the impugned order does not call for any interference.
Shrimp and Fish Processing Plant Ltd vs National Bank Ltd 13 BLC 441.
Order VII, rule 11—
It is the settled principle of law that disputed question cannot be decided at the time of considering an application under Order VII, rule 11 of the Code of Civil Procedure. It appears that none of the ingredients provided under Order VII, rule 11 of the Code of Civil Procedure are present in this case. In such circumstances of the case, plaint cannot be rejected.
Suraiya Begum and ors vs Maleka Khatun 12 BLC 54.
Order VII, rule 11—
On going to materials on record it transpires that the grounds urged for rejection of the plaint are absolutely the subject matter of evidence, which cannot be decided before taking evidence. On plain reading of the statements of the plaint it is evident that the same clearly discloses the cause of action, the relief claimed is not under valued, the plaint was not written upon paper insufficiently stamped and not barred by any other law. The question whether the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint.
Afaal Hossain vs Radha Kanta Korati 15 BLC 196.
Order VII, rule 11—
The law is now well settled that a plaint may be rejected under Order VII, rule 11 of the Code of Civil Procedure if it is barred by any law or if the plaint discloses no cause of action for the suit, which must appear from the averments made in the plaint.
Kazi Nasirul Huq vs Mizanur Rahman Talukder 15 BLC 380.
Order VII, rule 11—
21 deeds out of 77 deeds of transfer of schedule-'B' to the plaint and the plots relating to said 21 sale deeds were not referred to the Arbitration tribunal as per the Arbitration agreement dated 6-2-2006 and the award dated 4-5-2006 has got no manner of relation/connection with the said 21 deeds of transfer and, as such, the suit is very much maintainable with regard to those 21 deeds of transfer and plots. Thus the learned joint District Judge erred in law in rejecting the plaint of the suit as a whole.
Quaderabad Housing Estate Limited vs GK Moinuddin Chozvdhunj 15 BLC 808.
Order VII, rule 11—
It is settled principles of law that the question of limitation in a suit is a mixed question of law and fact which can be decided only at the trial on taking evidence. Therefore, we find no merit in the submission of the learned Advocate for the petitioner.
Saifuddin Ahmed vs Dr Hosne Am Begum alias Colap 15 BLC 828.
Order VII, rule ll(d)—
There is no ambiguity in the language of section 5 of the Ordinance. It is to be read as it is. By importing or adding the word 'rural' or 'urban' in the section it need not be interpreted otherwise. For the purpose of applicability of this section in the entire part of the country the legislature did neither used the word rural or urban nor used the word agricultural land or non-agricultural land in the section. So, we have found that by making the provision of section 5 acquisition of the 'immovable property' by benami transaction has been prohibited. The plaintiff had no legal title in the suit property to get declaration that the defendant is benamdar and he has acquired the property through benami transaction and, as such, the suit is barred under section 42 of the Specific Relief Act. There is no reason to interfere with the judgment and decree passed by the trial Court rejecting the plaint under Order VII, rule 11 (d) of the Code of Civil Procedure.
SN Knbir vs Fatema Begum 15 BLC 585.
Order VII, rule 17—
The learned Additional District Judge in his impugned order wrongly held that the plaintiff introduced some new facts by way of amendment. This view is absolutely erroneous elucidative of facts already asserted in the plaint. The settled law is that amendment of pleadings may be allowed at any stage of the proceedings for the purpose of determining the real controversy between the parties. It is true that the learned Assistant Judge did not assign any reason in allowing the application for amendment. It appears that the defendant has not in any way been prejudiced by svich amendment. So, non-assigning the reason by itself is not a ground for revision unless the same has resulted in an error in the decision occasioning failure of justice.
Ershad Ali vs Md Ruhul Amin 11 BLC 684.
Order VIII, rule 1—
Order VIII of the Code permits for filing additional written statement or with permission of the Court, better statement but it does not permit to file separate written statement.
Abu Md Shah Newaz vs Bangladesh 17 BLC 198.
Order VIII, rule' 1—
The undenied position is that the donors were illiterate parda-nishine village women and the defendant No. 1 in succession certificate case acted as Tadbirkar of the said women i.e. donors. In the facts and circumstances of the case, the burden was on the defendant No. 1 to establish that the donors executed the documents having had independent advice and also having had the knowledge about the transaction and the contents of the document. The defendant No. 1 miserably failed to establish the said fact.
Anwarul Azim vs Fatema Khatoon 12 BLC (AD) 96.
Order VIII, rules 1 and 2—
The plaintiff filed the suit on 3-11-1999 which has been contested by the defendant Nos. 1-12 but nowhere in their written statement there are any words referring Exhibits X(l), X(2) and X(3) nor the defendant produced those documents and led any evidence before any of the courts below. Trial Court dismissed the suit and the Appellate Court below decreed the suit but instead of producing those papers before the court at any stage how the learned Advocate like JK Paul submits for making the Rule absolute at this stage on the basis of those papers is not understandable. Mr Paul having made no argument controverting the finding of the appellate Ccuit below that the plaintiff has been punished unheard the removal order has offended the principle of natural justice.
Narayan Dash vs Md Mostofa 13 BLC 63.
Order VIII, rule 5—
Mandate of rule 5 of Order VIII is that unless allegation of fact contained in the plaint is not specifically denied, that allegation of fact shall be taken to be admitted.
Hari Rani Basak vs Bangladesh 13 BLC 1.
Order VIII, rule 10—Order IX, rule 13—Order XLIII, rule Kb)—
An order passed under Order VIII, rule 10 of the CPC is an appealable order under the provision of Order XLIII, rule l(b) of the CPC. In our CPC the provision of Rule l(b) of Order XLIII of the CPC has not been amended. According to our CPC, Rule l(b) of Order XLIII is .the specific provision for filing an appeal against an order passed under Order VIII, rule 10 of the CPC if the defendant fails to present the written statements on the date fixed by the Court. Before amendment of CPC in India the provision of Order XLIII, rule l(b) was the procedure for filing an appeal against an order passed under Order VIII, rule 10 of the CPC. But after amendment the provision of appeal has been deleted in India.
Ritpsha Fish Ltd vs Premier Bank Ltd 15 BLC 173.
Order VIII, rule 10—Order IX, rule 13A—Order XLIII, rule l(b)—
The new provision of rule 13A of Order IX has been brought in the CPC to avoid delay and expedite disposal in setting-aside the ex parts decree with cost without requiring the defendant to adduce evidence if an application for setting-aside decree is filed within thirty days from the date of decree. But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the ex purte judgment which comes within the meaning of Order VIII, rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order XLIII, rule l(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner's prayer for rejecting the miscellaneous case as being not entertainable.
Rupaly Fish Ltd vs Premier Bank Ltd 15 BLC 273.
Order IX, rule 2—
The suit was not dismissed for default under Order IX, rule 2 of the Code and legitimacy of getting notice after restoration is not available under Order XVII, rule 1(7) of the Code where restoration procedure was maintained with the knowledge of the parties. There is no scope to issue any further notice under the new provision unless the Court is fully satisfied that the party was eager to contest, but could not get any information about the revival.
Momtajurn vs Arju Miah 17 BLC 787.
Order IX, rules 8 and 9—
In the present case no step was taken by the plaintiff to set-aside the dismissal order of the previous suit and by suppressing the fact of the earlier suit, the plaintiff filed the present one. The records of the earlier case were subsequently presented before the Courts below along with the relevant law but the Courts below without considering the provisions of law as laid down in Order IX, rule 9 of the Code of Civil Procedure came to an erroneous finding creating serious infirmity in their judgments which render the impugned decisions not sustainable in law.
Kamaluddin vs Md A Aziz Mondal 13 BLC 104.
Order IX, rule 13—
None of the OPWs stated a single word on the service of summons on defendant No. 1 but the records show that after the receipt of the return the trial Court fixed a date for ex parte disposal but before fixing the date, the trial Court has not looked into the service return. In the present case in a hot haste an ex parte decree was obtained which indicates that a fraud was committed upon the Court as well as upon the defendants and when a fraud is proved, then there is no question of limitation and time will run from the date when the fraud is detected and so, the question of limitation does not arise in the present case; even as, for argument's sake, it is conceded that the fraud was detected earlier, even then the Court is not debarred to interfere under section 151 of the Code.
Hyder AH Mia (Md) vs Razia Begum 12 BLC (AD) 75.
Order IX, rule 13—
Since the Miscellaneous case was filed beyond the period of limitation and that as the petitioner in the Miscellaneous Case failed to establish his initial date of knowledge about the ex parte decree, the trial Court dismissed the Miscellaneous Case on the finding of limitation. The respondent No.l tried to establish the date of knowledge of the ex parte decree by the evidence of PW 2, who being cultivator of the respondent No.l trial Court quite legally considered him not disinterested witness, but High Court Division without reversing the finding of the trial Court on limitation set-aside the judgment of the trial Court. Service of summons on the respondent No. 1 was quite good service and the High Court Division was in serious error in holding that the ummons served in the manner was not a good service.
Sudhir Kumar Das vs Abdul Malek Mia 12 BLC (AD) 1.
Order IX, rule 13—
Considering the above facts and circumstances of the case, the High Court Division has rightly found that the Miscellaneous Case was barred by both limitation as well as by principle of res-judicata and accordingly, made the Rule absolute.
Enayet Hossain vs Nur Islam Howla-der 12 BLC (AD) 179.
Order IX, rule 13—
At the trial of the suit the appellants proceeded taking the stand that the claim of the plaintiff of the previous suit as regard the land in suit was based on non-genuine documents or, in other words, defendant-respondent in the previous suit obtained the ex parte decree on the basis of perjured evidence but setting-aside of the ex parte decree on the ground of obtaining the same on the basis of perjured evidence can never be accepted.
Government of Bangladesh, represented by the Secretary, Ministry of Forest vs Md Osimiiddinll BLC (AD) 10.
Order IX, rule 13—
The initial knowledge about the ex parte decree remained unestab-lished and consequent thereupon the Miscellaneous case filed on 6-11-1983 was certainly barred by limitation, since defendants were required to file the suit on 1-11-1983 as period of limitation was intervened by civil Court vacation re-opening on 1-11-1983.
Delwar Hossain Akter (Md) vs Md Nazrul Islam Khan andothers 11 BLC (AD) 265.
Order IX, rule 13—
There is no record that the summons were duly served upon the defendants. In such circumstances the onus lies heavily upon the plaintiffs of the previous suit to prove that summons were duly served upon the defendants which they utterly failed to prove and hence the ex parte decree is liable to be set-aside. Both the parties are in ejmali possession of the suit land. The Court of appeal rightly dismissed the prayer for declaration of title in the suit land. The plaintiffs-petitioners are at liberty to seek appropriate relief in a proper suit.
Amiruddin Mondal vs Ashraf Ali 11 BLC 134.
Order IX, rule 13—
A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of the suit. The learned Advocate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation.
Ibn Sina Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.
Order IX, rule 13—
Both the Courts below took into account pleadings of parties, evidences adduced from both sides, specially evidence of OPW 5 process-server and various orders recorded that the Suit came to positive decision that defendants-petitioners were well aware of original Suit and they were substituted on the death of their predecessor and summons had been duly served upon them. Court of appeal, also, found that Miscellaneous Case was rightly dismissed on a detailed discussion and it found no justification nor any ground to interfere with decision rendered by learned Joint District Judge which does not at all warrant interference.
Syeda Heidi Begum vs Shanti Mary Cmez 12 BLC 661.
Order IX, rule 13—
The summons was not duly served on them and that they were not aware of the institution of the suit but they did not claim in their petition that their addresses given in the cause-title of the suit was wrong but in spite of this position the learned Sub-ordinate Judge as well as the learned Single Judge of the High Court Division committed an error of law resulting in an error in the decision occasioning failure of justice in making out a third case.
Kulsuma Khatun vs Rahman Sobhan 14 BLC (AD)27.
Order IX, rule 13—
The judgments of the Appellate Division which affirmed the ex parte decree dated 23-6-1999 passed by learned Assistant Judge, Nawab ganj in Title Suit No. 127 of 1997, it transpires that the impugned judgment dated 16-4-2006 passed by the learned District Judge is manifestly perverse. Because, the finding and decision of the Appellate Division is binding on all the courts below including the High Court Division under Article 111 of the Constitution of Bangladesh. The impugned judgment and order passed by the learned District Judge, Dhaka is absolutely wrong, illegal and manifestly perverse which is liable to be set-aside.
Nurjahan Begum vs AFM Abdullah 13 BLC 535.
Order IX, rule 13—
Due service of summons is an essential condition which must be satisfied before Court can proceed to award an ex parte order/decree. In knocking down an ex parte order/decree on the ground of fraudulent suppression on summons, knowledge is not at all relevant and an ex parte order/decree is liable to be overruled even if a party against him ex parte order/decree had been recorded had knowledge of a Civil proceeding against him.
Momin Miah vs Md Shafiitllah Patioari 13 BLC 86.
Order IX, rule 13—
It is contended on behalf of the petitioners that the trial Court itself was satisfied that the summons was not duly served, rather, the summons was received by one Shahidullah, an alleged attorney of the petitioners, the trial Court committed illegality in finding that receipt of summons by the alleged attorney is sufficient to treat the service as proper since the petitioners specifically stated in their application that any person named Shahidullah or anybody else was not appointed by them to act on their behalf, particularly to receive any summons, and it was the duty of the plaintiffs to prove that the summons was duly served upon the defendants.
Moslehuddin vs Omar Ali 14 BLC 217.
Order IX, rule 13—
The appellant ought to have been given an opportunity to prove his case of wrong advice given by the learned Advocate, which fact the appellant asserted on oath in his pleading, and such act, on the part of the District Judge in not providing an opportunity to a litigant to prove his case, is against natural justice and thus the rejection of the condonation application filed under Order IX, rule 13 of the Code of Civil Procedure for restoration is illegal and cannot be maintained.
Meer Niaz Mohammad vs Bangladesh Shilpa Rin Sangstha 14 BLC 407.
Order X, rule 2—
The petitioner is a necessary party in the suit because the company enjoyed the loan when she was its Chairman, as such, the suit should be disposed of in her presence. However, her liability is not dependent on her status as the Chairman or share-holder of the company unless it is found on evidence that she executed the charge documents in favour of the bank.
Bakul Akter vs Bangladesh 16 BLC (AD) 4.
Order XI, rule 21—
Defendant No. l(a) to l(e) did not contest the suit as heir of defendant No. 1 but heir of Shamsul Kabir Hamayun Reza of Bora Mogbazar who is not a party to the suit and role of DIT having been very unsatisfactory and he adduced a witness who himself deposed that he is not authorised by DIT to depose, cases were these defendants left out of consideration in deciding all the appeals in which they are defendants excepting the case in which defendant No. l(a) to l(e) are plaintiffs. Per Sharif Uddin Chaklader, J (delevering the main judgment)
MA Hashem vs Shamsul Kabir Humayun Reza 16 BLC 830.
Order XVI, rules 13 and 17—
Purpose of serving notice is nothing, but to give information to the parties about the proceeding, so that they can appear if they like. The purpose appears to have been served by giving information through their engaged lawyer. But the learned Judge of the trial Court even after admitting about getting information of revival misdirected himself by saying that notice was necessary to be served in the suit after its revival.
Momtaj Begum vs Arju Miah 17 BLC 787.
Order XVII, rule 1(7)—
The suit was not dismissed for default under Order IX, rule 2 of the Code and legitimacy of getting notice after restoration is not available under Order XVII, rule 1(7) of the Code where restoration procedure was maintained with the knowledge of the parties. There is no scope to issue any further notice under the new provision unless the Court is fully satisfied that the party was eager to contest, but could not get any information about the revival.
Momtaj Begum vs Arju Miah 17 BLC 787.
Order XVII, rule 1(7)—
No notice was required to proceed with the suit after revival order passed under Order XVII Rule 1 (7) of the Code.
Momtaj Begum vs Arju Miah 17 BLC 787.
Order XVII, rule 2—
Summons upon the defendants were not at all served or there is nothing on record to show that the government appeared and contested that suit. Thus it is evident that the defendant was prevented by sufficient cause from appearing before the Court when the suit No. 329 of 1974 was called on for hearing. Moreover, it is worthy to state that when the elements of fraud and collusion is manifested in procuring the ex parte decree, that decree vitiates.
Bangladesh vs Serajul Haque 11 BLC 714.
Order XVIII, rules 2 and 3—
Considering the provisions of Order XVIII, rules 2 and 3 of the Code of Civil Procedure and sections 101,102,103 and 138 of the Evidence Act it manifests that mere stating or alleging facts in the pleading are not enough to establish a legal right, be it preemption under the Mohammedan Law on any other suits proceeding under any other Law. There was no reference of talab-e-mowasibat when he allegedly performed the formalities of talab-e-Ishaad. If there was no reference of talab-e-mowasibat at the time of talab-e-Ishaad then it would be held that the legal formalities which are condition precedent to exercise the right of preemption under the Mohammedan Law were not observed. Thus, the plaintiffs have failed to observe the legal formalities of talab-e-Ishaad and talabe-e-mowasibat being the condition precedent to pray for preemption under the Mohammedan Law.
MonirMiah vs Slwfiqur Rahman 13 BLC 606.
Order XVIII, rule 17—
It is well settled that under Order XVIII, rule 17 CPC the Court has ample power to re-call at any stage a witness who has earlier been examined, cross-examined and discharged. This discretionary power can be exercised at the instance of a party or even suo motu. But such discretion cannot be extended beyond the law of Evidence as described under section 138 of the Evidence Act to allow a party to the suit who did not cross examine a witness in time and without any excuse to avail his right to cross-examine the witnesses, the whole purpose or object for such discretion is to advance justice not to cause injustice.
Abdul Aziz Howlader vs Seratan Bibi 15 BLC 461.
Order XX, rule 4—
The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the Courts below or to set-aside the judgment of the Courts below. The learned Judge in disposing of the instant case has not given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set-aside the judgment of the Courts below. The Appellate Division expects that in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record, and thereupon assigning reason in support of his judgment. It may be mentioned in the instant case in spite of the quality of the judgment the Appellate Division did not feel to interfere with the same since on perusal of the materials on record the Appellate Division was convinced that although the judgment did not conform to the accepted form or kind, the judgment ought to have but the result arrived at calls for no interference.
Ashrafee Begum vs Md Siddiqur Rahman Patwari 13 BLC (AD) 111.
Order XX, rule 6—
The question as to passing of the decree without complying with Order XX, rule 6 of the Code could have been good grounds for agitating before the Court of appeal. But without contesting the suit and without applying section 19 of the Ain for setting-aside the ex parte decree or without applying for deduction of the value from the claim the suit as provided in section 12(6) of the Ain the petitioner cannot now come under the writ jurisdiction and claim that the proceeding and the judgment and decree delivered by the Artha Rin Adalat is a nullity and/or void and without any basis.
KM Hamdor Rahman vs National Housing Finance & Investments Ltd 11 BLC 578.
Order XXI, rules 3, 5, 6, 7, 8 & 9—
Collective reading of the sections 5(4), 5(5) and 6(ka) of the Ain of 1990 shows that Artha Rin Adalat shall follow and apply the Code of Civil Procedure as a Civil Court in exercising its jurisdiction, powers and functions while adjudicating any dispute between the parties before it including execution of its decree insofar as, it is not inconsistent with the provisions of section 6(Ka) or any other provisions of the Artha Rin Adalat Ain, 1990. Section 6(Ka) has excluded the operation of Rules 3,5,6,7,8 and 9 in matters of execution of any decree. In other words, Artha Rin Adalat shall execute its decree applying the provisions of sections 55 and 56 of the CPC read with Order XXI and the rules made thereunder except the rules 3,5, 6, 7, 8 and 9. Application of section 56 of the Code has not been excluded by section 6(Ka).
Hazera Begum vs Artha Rin Adalat 12 BLC (AD) 153.
Order XXI, rule ll(2)(g)—
By filing the application dated 25-9-2005 the petitioner has in effect sought a piecemeal execution of the decree/firstly, for the principal amount and subsequently for the amount of interest that is contrary to the express provisions of Order XXI, rule ll(2)(g). The decree-holder-petitioner had a right to seek a comprehensive and complete relief the first time around, but having not done so, as is evident in the facts and circumstances of this case, shall not, therefore, have any avenue open to it for placing claims periodically at subsequent dates. Having thus failed to so fully exercise its right by execution of the entire Decree at one go the decree-holder-petitioner, and as is evident in the execution petition of 10-3-2005, having asked this Court to enforce the decree for the sum only of Taka 19,70,000, a sum lesser than the gross claimed amount of Taka 31,03,562.50 inclusive of interest, must now be taken to have accordingly waived the right to claim the balance amount of Taka 11,33,562.50. Requiring this Court to now allow satisfaction of the claim to the balance interest amount in the manner as sought in the application dated 25-9-2005 is tantamount to effectively asking this Court to innovate on the execution application and case which this Court is now reluctant to undertake in the facts and circumstances.
Fairdeal Marine Services vs 'MV Peleas K' 23 BLC 447.
Order XXI, rules 13 and 17—
According to the provision of order XXI, rule 13 of the Code, the application may be made before the executing court for attachment and sale of any immoveable property belonging to the judgment-debtor for the purpose of realisation of money. So, any immovable property which belonged to the judgment-debtor may be attached and sold in execution of a decree for realisation of money. It is not correct that the properties not included in the schedule of the plaint cannot be included at the execution stage for the purpose of attachment or sale. It appears from the provision of Order XXI, rule 17 of the, Code, there is no restriction within four corners of this Rule about allowing amendment of an application of execution after registration thereof. The Adalat (execution Court) had lawful authority to amend the application. So, the impugned order dated 12-8-2000 may be lawful if it is found that the flats belonged to the judgment-debtor.
Rashida Mahabub vs IFIC Bank Ltd 13 BLC 78.
Order XXI, rules 26 & 29—
The executing Court in the facts and circumstances of the case rightly arrived at a finding that petitioners being a third party to the decree have no locus standi to file an application under Order XXI, rule 26 and 29 of the Code of Civil Procedure for staying all further proceedings of Execution Case till disposal of the Title Suit No.370 of 2007. We endorse the reasoning given by the executing Court in rejecting the application under Order XXI, rule 26 and 29 of the Code of Civil Procedure for stay.
Abul Kkair vs Advocate Mokhlesur Rahman Choiu-dhury 15 BLC 582
Order XXI, rule 27—
The present case is considered a fit case for remand to the appellate Court below for consideration of the application for amendment to the plaint as well as for admission of the basic documents of title filed in that Court by the plaintiff-petitioner by a firishti during the pendency of the appeal as additional evidence by giving opportunity to the defendant-opposite-party No.l to adduce fresh evidence, if any, and then dispose of the appeal afresh.
Kaniz Fatema vs Syed Ruhul Amin 11 BLC 123
Order XXI, rule 29—
A separate suit is not barred provided his remedies under the Artha Rin Adalat Ain stood barred at the time of filing of the suit for no fault of his own. The door of the Code of Civil Procedure is still open to the petitioner if he can prove that no summons was served upon him and he had no knowledge of the suit. The learned Advocate for the opposite-party No. 1 also admits that petitioner can seek his relief under Order IX, rule 13 of the Code if he can overcome the bar of limitation.
Ibn Sina Trust vs Arab Bangladesh Bank Ltd 11 BLC 154.
Order XXI, rule 29—
The judgment debtor instituted title suit No. 14 of 2004 against the decree holder for perpetual injunction for restraining him from taking possession of the suit land. In the execution proceeding, he made an application under Order XXI, rule 29 of the Code of Civil Procedure for stay of further proceedings of the execution case. The executing Court however, allowed the application and granted stay of further proceedings of the execution case till disposal of title suit No.14 of 2004. Against the order of stay, the decree holder made a revision application before the district Judge at Brahmanbaria. Additional District Judge, Second Court hearing the revision was pleased to allow the revision and set-aside the order dated 4-7-2005 and directed executing Court to proceed with the execution expeditiously. In the aforesaid circumstances, the application made under order XXI, Rule 29 must be held to be misconceived and tortuous on the part of the judgment debtor to stall the execution proceeding.
AKM Shahidul Haque vs Abu Taker 12 BLC 135.
Order XXI, rule 29—
In order to invoke Order XXI, rule 29 of the Code of Civil Procedure, the existence of a decree is required and admittedly, the Arbitral Award sought to be enforced is neither a decree nor the same has been deemed to be a decree by any law. Therefore, in the facts of the case and the principles enunciated in the cited decisions vis-a-vis the provision of Order XXI, rule 29 of the Code of Civil Procedure we have no hesitation to hold that the learned District Judge, Dhaka committed serious error of law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the Subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
Smith Co-Generation (BD) Private Limited vs Bangladesh PDB 15 BLC 704.
Order XXI, rule 32(1)—
Revisional Court below set-aside the order of the Executing Court holding that possession cannot be restored in execution of a decree of perpetual injunction under Order XXI, rule 32(1) of the Code by putting the judgment-debtor into civil jail and by attachment of his land or by both the ways, etc. Revisional Court however found that the judgment-debtor dispossessed the decree-holder from the land defying the ex parte decree, but there is no scope to execute the decree without filing a fresh suit since dispossession gave rise to fresh cause of action. On plain reading of sub-rule (1) of rule 32 of Order XXI of the Code it appears that sub-rule (1) clearly empowered the executing Court to enforce a decree of injunction.
Mahbub-ul-Alam (Minor) vs Md Alimiiddin Karikor 15 BLC 76.
Order XXI, rule 37—
Without resorting to those protections provided by the Act VIII of 2003 the petitioner has challenged the vires of section 34 of the Ain of 2003 with reference to Order XXI, rule 37 of the Code of Civil Procedure alleging that the said provision is ultra vires the Article 31 of the Constitution on the plea of not issuing show cause notice before issuance of warrant of arrest, which is not entertainable since the entire process of initiation of the suit, passing of the ex parte judgment and decree, filing of the execution case and process for auction sale of the mortgaged property are within the knowledge of the petitioner. Rather, with the purpose to cause delay for realisation of the decretal amount the present application has been filed by the petitioner praying for notice as provided in the Code but to fulfil such desire even Order XXI, rule 37 of the Code does not also provide for issuance of any notice.
ABM Shirajum Monir vs Sub-ordinate Judge 14 BLC 716.
Order XXI, rule 37 —
The provision of Order XXI, rule 37 of the Code of Civil Procedure speaks about issuance of show cause notice upon the judgment-debtor before issuing warrant of arrest as to why he should not be committed to civil prison without reference to any period of sentence for recovery of money pending execution proceeding, as a mode of punishment, whereas section 34 of the Ain, 2003 provides for civil detention " to be passed against the judgment-debtor as a mode for realisation of the decretal amount where the legislature has used the following language ". as such, it cannot be said that Order XXI, rule 37 of the Code is identical with the provision laid down in section 34 of the Ain of 2003.
ABM Shirajum Monir vs Sub-ordinate Judge 14 BLC 716.
Order XXI, rule 58 —
The sole question to be investigated is one of possession. And next, if possession is found of the respondents whether they possessed independently or through judgment debtor. Learned Judge without any investigation passed the order holding that the applicant's respondents ascertained in the application that their property was wrongly included in the auction notice.
Rupali Bank Ltd vs Sheuli Akter Mom 17 BLC 476.
Order XXI, Rule 58—
An inter-locutory order is neither an appealable nor a revisable order; therefore, challenging a rejection order passed by the Artha Rin Adalat on an application under the said provisions is erttertainable under the writ jurisdiction.
MM Badshah Shirazi vs Judge, Artlia Rin Adalat 17 BLC 226.
Order XXI, rule 58—
The petitioner not being a third party to the suit and he having contested the suit by filing written statement, the application under Order XXI, rule 58 of the Code is incompetent. There was no ground to interfere with the impugned order and left the matter open for deciding the same by the executing Court.
Uttara Bank Ltd w Sub-ordinate Judge 11 BLC (AD) 229.
Order XXI, rule 58—
We have carefully examined the provisions of section 6(5) and other related sections of the Ain, 2003 together with the application under Order XXI, rule 58 of the Code of Civil Procedure and it appears that the Courts below under the legal obligation rightly treated the claim of the petitioner as 3rd party's claim.
Harunur Rashid Bhuiyan vs Pubali Bank Ltd 15 BLC 458.
Order XXI, rules 58 and 62—
Rule 58 of Order XXI of the Code of Civil Procedure requires an executing Court to investigate the claim or objection of an objector as if he was a party to suit. Such investigation is dispensed with only when the court considers the claim or objection was designedly or unnecessarily delayed. The court did not find the claim or objection of AB Bank was delayed. In the facts and circumstances of the case and in the interest of justice, the Fourth Artha Rin Adalat which now holds the property must dispose of both execution cases under section 27 of the Ain. In the result, the appeal is disposed of without however any order as to cost. Third Artha Rin Adalat is directed to send the decree dated 29-7-99 passed by it in Title Suit No. 125 of 1992 to the Fourth Artha Rin Adalat for execution and Fourth Artha Rin Adalat is directed to execute both the decrees in accordance with law.
Arab Bangladesh Bank Ltd vs Janata Bank and ors 11 BLC 186.
Order XXI, rule 90—
The Court can sno motu take notice of gross irregularities in auction sale and from the facts as stated in the application under Order XXI, rule 90 of the Code of Civil Procedure. It is true that at the instance of a 3rd party auction sale can be set-aside but the Court has always the power to set-aside such auction sale on the ground of fraud and irregularities.
Kamal Hossain vs Sub-ordinate Judge and Artha Rin Adalat 15 BLC (AD) 177.
Order XXI, rule 90—
It is seen from the materials on record that the defendants failed to establish their case of auction purchase upon due compliance of law and, in this regard, it has been held by the lower appellate Court that the auction by which defendants are said to have purchased the land depriving co-sharers was product of fraud. It is seen from the judgment of the lower appellate Court that the minors were not represented in the money suit, in execution decree whereof the land of the plaintiffs were put to auction, although plaintiffs' mother was alive at the relevant time but she was not made party in the money suit to represent the minors i.e. the plaintiffs.
Dalil-uddin Sheikh vs Alek Sheikh U BLC (AD) 32.
Order XXI, rule 90—
The Court can suo motu take notice of gross irregularities in auction sale and from the facts as stated in the application under Order XXI, rule 90 of the Code of Civil Procedure. It is true that at the instance of a 3rd party auction sale can be set-aside but the Court has always the power to set-aside such auction sale on the ground of fraud and irregularities.
Kamal Hossain vs Sub-ordinate Judge and Artha Rin Adalat 15 BLC (AD) 177.
Order XXI, rules 90 and 91—
The petitioner did not file any application under Order XXI, rules 90/91 of the Code for setting-aside sale on the ground of fraud but filed an application under section 151 of the Code. Moreover, it has already been settled in many cases that for maintaining an application under the Code, security to the extent of 25% of decretal amount is necessary in view of the provision of section 32(2) of the Ain.
Rashida Mahabub vs IFIC Bank Ltd 13 BLC 78.
Order XXI, rules 94 and 95—
The High Court Division disbelieved the case of the plaintiff on the ground that the plaintiff could not produce the writ of delivery of possession and only the certified copy of sale certificate was produced without calling for the original of the same. The High Court Division took correct view that the plaintiff could not prove that the ex-landlord auction purchased the suit land and made the same khas and thereafter, the same vested in the Government as excess non-retainable khas land of the ex-landlord.
Bangladesh vs Md AH Khondker 12 BLC (AD) 160.
Order XXI, rules 94 and 95—
Exhibits 3(b), 3 and 3(a) are documents revealing that property to the extent of 10 annas 5 gondas 1 Kara 1 krantee share owned by Gokul Chandra Basak and Madan Mohan Basak had been put to auction and plaintiff-petitioner Hari Rani Basak purchased property of the above shares i.e. 2/3 of share of the whole property and sale was confirmed. Sale Certificate had been issued and on the strength of Writ of Delivery of Possession, auction purchaser plaintiff PW 1 Hari Rani Basak had entered into possession through process of law. A careful exploration of Sale Certificate and Writ of Delivery of possession, Exhibit 3 and 3A, demonstrates that Rules and Procedures engrafted in Rules 94 and 95 of Order XXI of The Code had been complied with. Title of suit property on the strength of auction purchase had passed to plaintiff-petitioner Hari Rani Basak.
Hari Rani Basak vs Bangladesh 13 BLC 1.
Order XXI, rules 94 and 95—
The discussion and finding that Exhibits 2-2ga were written on previously used stamps and signed and sealed and fraudulently manufactured after washing and removing the previous writings with help of chemical substances by giving hit of fire and spraying dirt superficially, that though the certified copies were, issued 40 years before seal used appeared clear and fresh of recent origin with clear, distinct and visible marks of subsequent overwriting, manipulation and interpolation on 2ka, 2kha and 2ga in execution case of 1954, figure 4 and figure 3 of the date 31-3-55 after rubbing marks of previous seal, the term 'Munsif misspelt as 'Monsif and 'Bakagonj' written in the seal in Exhibits 2, 2ka leading the trial Court to hold that only to grab the property left by the member of Hindu community plaintiffs and the defendant jointly brought the suit and that had the property been acquired by auction purchase in 1961 or before they would naturally take active step for mutation and separation of jama to obtain mutated khatian and rent receipt but no such step was taken, are, in my view, cogent and consistent with materials and evidence and the above findings of fact arrived at by the trial Court on consideration of the evidence on record and the learned Sub-ordinate Judge as last court of fact, without adverting to the fact and circumstances and setting-aside the same on consideration of evidence, acted illegally with material irregularity in decreeing the suit occasioning failure of justice and, as such, impugned judgment and decree passed by the learned Sub-ordinate Judge is not sustainable and liable to be set-aside.
Anowara Begum vs A Majid 14 BLC 658.
Order XXI, rules 97 and 98—In the instant case, the learned Judge ought to have taken necessary steps to put the decree-holder in physical possession of the concerned property of the judgment-debtor as prayed for. Since specific provision is not available in the Act enabling the Artha Rin Court to put the decree-holder into possession, the Court may exercise its such jurisdiction as provided in rules 97 and 98 under Order XXI of the Code read with section 26 of the Act, and give necessary directions to execute its order.
IFIC Bank Ltd vs Mariner Fashions Wear Pvt Ltd 12 BLC 723.
Order XXI, rule 99—
The provision of Order XXI, rule 99 is of no assistance to the plaintiff as well as the present suit is not pending against both the parties to the previous suit so as to attract the said provision but the instant application for temporary injunction is simply designed to obstruct the execution of decree obtained 30 years back by the defendant in the instant suit for declaration of title and recovery of possession at the instance of the plaintiff.
Joinmnessa vs Abdul Matalib 15 BLC (AD) 124.